Outpost of Freedom blog

Burns Chronicles N^o 33
Ryan Payne’s Plea Withdrawal

Gary Hunt
Outpost of Freedom
October 13, 2016

Back on July 13, Ryan Payne signed a plea agreement.  As will be explained, below, he has now requested the Court to Withdraw Guilty Plea and Proceed to Trial by Jury and go to trial on the charges.

Though it won’t be mentioned in the Motion, in addition to what follows, Ryan was threatened with a Terrorism Enhancement, if he went to trial and was convicted.  That would be a 30 years sentence, but, as I said, the Court cannot recognize that, as it was part of negotiations.

So, let’s look at the picture that the Motion to Withdraw Guilty Plea gives us, at least in pertinent part.  I will leave the citations in, for those who wish to review previous decisions on the subject:

After entering a plea of guilty to Count 1, Mr. Payne stated the following as a factual basis for his plea, in the words of Ryan Payne:

“Ah, your Honor, the very first adult decision that I ever made was when I was 17, to join the military of the United States.  And in so doing, I took an oath to uphold and defend the Constitution. I traveled to Harney County, here in Oregon, under the pretense that this was my intent. That I was coming to uphold and defend the Constitution.”

“In pursuing that effort, I understand I — I have come to understand that folks who were — who work for the Government, that that Constitution ordained, perceived my actions as threatening or intimidating.  And, thereby, I – I understand myself to have been guilty of the charge that I’m charged with.

The Court inquired whether Mr. Payne agreed that his actions actually impeded government officials. Mr. Payne responded, “[a]s it has been presented to me, it is my understanding that I did, your Honor.”

So, Ryan went to the Malheur Refuge with the intention (not a criminal intent, rather, a patriotic intent) to defend the Constitution.  And, that is what this whole trial is about.

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Then, he points out, not that he threatened or intimidate, rather, that those folks at the Refuge “perceived” his actions as threatening.  So, he “understands”, rather than believes, that he is guilty.  That is based on the information provided to him, as well as any other influences as to what the consequence might be if he proceeded to jury trial (see the second paragraph for one of those influences).

Now, getting to some conditions that justify his withdrawal of the plea, we find that there had been a lot of information withheld from him — upon which he was to make that decision.  Here are two elements of information that was not made available, which we now find had exculpatory (possibly proving innocence) evidence that has since come to light.

Subsequent to the change of plea hearing, the prosecution produced seven additional volumes of discovery to all defendants. The later discovery productions included materials that became exhibits in the trial of co-defendants currently ongoing before the Court.

Additionally, subsequent to the change of plea, the government acknowledged the use of confidential informants, such as Mr. Mark McConnell, that had not been disclosed to Mr. Payne on the date he entered a plea.

Now the legal basis justifying his right to withdraw:

APPLICABLE LAW AND BASIS FOR WITHDRAWAL

Federal Rule of Criminal Procedure 11(d)(2)(B) governs withdrawal of guilty pleas. The Rule “directs a district court to permit a defendant to withdraw a guilty plea before sentencing if the defendant comes forward with any fair and just reason for doing so.” United States v. Ortega- Ascanio, 376 F.3d 879, 887 (9th Cir. 2004). Although a defendant may not withdraw a guilty plea “simply on a lark,” the fair and justice standard “is generous and must be liberally applied.” United States v. Ensminger, 567 F.3d 587, 590–91 (9th Cir. 2009).

The timing of the motion to withdraw a guilty plea is critically important. Before sentencing, a defendant “need not prove that his plea is invalid” in order to meet the standard for withdrawal of the plea. Oretega-Ascanio, 376 F.3d at 884. Instead, a more liberal standard applies, permitting withdrawal of the plea on grounds including “inadequate Rule 11 plea colloquies [formal discussions], newly discovered evidence, intervening circumstances, or any other reason for withdrawing the plea that did not exist when the defendant entered his plea.” Id. at 883 (citing United States v. Turner, 898 F.2d 705, 713 (9th Cir. 1990)). If a defendant demonstrates one of these grounds, withdrawal of the plea should be “freely allowed.” United States v. Showalter, 569 F.3d 1150, 1154 (9th Cir. 2009).

Then, in itemizing the elements that are mentioned, his attorney, Rich Federico, provides the following:

A.  Intervening Circumstances in the District of Nevada Provide a Fair and Just Reason for the Court to Permit Mr. Payne to Withdraw his Guilty Plea

As stated during the change of plea hearing, the foundation of the Oregon plea agreement was that an agreement would also be reached in Nevada. Mr. Payne was given a very short period of time in Oregon from the date the plea offer was received on July 12th, before that offer expired at 5:00 PM on July 13th. On the date Mr. Payne signed the Oregon plea agreement, the Nevada offer was only in a draft format. Notably, the entire “statement of facts” section of the Nevada plea offer had been left blank. When Mr. Payne arrived in Nevada, he was only then provided a “statement of facts” that Nevada prosecutors demanded he agree to in order to secure the deal. Subsequent negotiations have not been able to break through the differences between the parties in Nevada.

On the date he entered a guilty plea in Oregon, had Mr. Payne known all the terms of the deal in Nevada, he would not have signed the deal in Oregon.

Additionally, Mr. Payne’s case is unique in that he is being prosecuted simultaneously in two federal districts, in complex trials. This Court previously acknowledged that having Mr. Payne and his co-defendants be charged in both districts was “a most unusual situation the defendants are facing here.” The “unusual situation” of simultaneous prosecutions should be considered by the Court when weighing whether intervening circumstances in another case, in another district, are compelling to meet the “fair and just” standard. Because the parties and Mr. Payne were clear at the change of plea hearing that the “foundation” of the Oregon plea deal was reaching a similar deal in Nevada, the change in circumstances upon Mr. Payne’s arrival to the District of Nevada weigh in favor of granting withdrawal of his plea.

Ryan had been deceived by Nevada, and given an incomplete document, relying, instead, on verbal promises — which prove to be worthless.  He had been led to believe what the Nevada plea would entail, but found that it was not as represented.  He also had to consider the “most unusual situation” where he would have to prepare defenses in both states, while still detained, under guard, with limited access to attorneys, and nearly no access to those outside who may have been able to help him prepare his defense.

B.  Newly Discovered Evidence Was Provided After Mr. Payne’s Guilty Plea

Although many of the facts of what occurred at the Malheur Refuge are not in dispute, the legal significance attributed to those facts is highly disputed. Proof of a conspiracy requires intent. Thus, any and all statements of intent, motive, and purpose are extremely relevant to an ultimate determination of guilt.

Subsequent to the change of plea hearing, the government produced seven additional volumes of discovery to all co-defendants. Some of this new information was particularly germane to Mr. Payne. For example, it included a video that depicts Mr. Payne talking to many others at the Refuge on January 7, 2016. In the video, Mr. Payne is shown discussing the goals of the protest, discussions he and others previously had with Harney County Sheriff Dave Ward, and Mr. Payne’s clear statements to alleged co-conspirators that they do not want violence. The existence of corroborating evidence of Mr. Payne’s non-violent intentions is a factor for the Court to consider when evaluating the effect of new evidence.

More significantly, prior to Mr. Payne’s change of plea hearing, the government had not disclosed the extent of its use, nor the names of confidential informants employed by the government to infiltrate meetings at the Refuge and elsewhere. It has now been revealed that some of the inculpatory [proving guilt] conduct and statements attributed to Mr. Payne apparently were made to confidential informants, a fact previously unknown to Mr. Payne. Had Mr. Payne and his counsel been aware of this basis for impeachment of the government’s potential witnesses, they could have evaluated the strength of the government’s case differently.

Newly discovered information need not be exculpatory in order to warrant withdrawal of a guilty plea. United States v. Garcia, 401 F.3d 1008, 1011 (9th Cir. 2005) (noting that defendant need not “show that the new evidence exonerates him or that there is a reasonable probability he would not have been convicted had the case gone to trial”). Instead, the question is whether the new evidence “could have at least plausibly motivated a reasonable person in [the defendant’s] position not to have pled guilty had he known about the evidence prior to pleading.” Garcia, 401 F.3d at 1111–12. Again, in weighing whether newly discovered evidence provides a basis to permit Mr. Payne to withdraw his guilty plea, the Court must apply the standard liberally towards the relief he seeks.

If we understand that hearsay evidence is inadmissible, then we find that the government has provided, in Discovery, hard evidence of things that might have been said.  And, no evidence that might exist that would dispute the inculpatory evidence, so that there was a means of countering what had been provided.  Where having that which had not been provided might, at least, afford a fair hearing, might be the reason for pleading out of frustration, rather than fighting the battle in court.

C.  The Rule 11 Plea Colloquy Demonstrated that Mr. Payne Did Not Fully Agree to the Factual Basis for his Plea to Count 1

It is clear from his responses at the change of plea hearing that Mr. Payne had serious misgivings and reservations regarding the factual basis for his plea. His responses were equivocal, at best, regarding the factual basis and whether he believed he was really guilty of the crime. For example, Mr. Payne stated that “I have come to understand that folks who were — who work for the Government, that that Constitution ordained, perceived my actions as threatening or intimidating.” This followed a statement in which Mr. Payne said that his true intent in traveling to Harney County, Oregon was to “uphold and defend the Constitution.” He also stated that “as it has been presented to me,” it was his understanding that his conduct actually impeded federal officials through threat or intimidation. The only response regarding the factual basis that was unequivocal was a simple affirmative response (“I did, your Honor”) to the question pointed specifically towards whether he entered into an agreement to intentionally engage in conduct. The Court need not find that Mr. Payne’s plea was invalid to allow him to withdraw it. Oretega-Ascanio, 376 F.3d at 843. When the Court liberally applies the “fair and just” standard, it should consider, as a matter of fairness, that Mr. Payne was extremely equivocal in his responses regarding the factual basis for his plea. His equivocations, coupled with the pressure of the situation and the statement of his true intent to engage in lawful conduct, may also persuade the Court that Mr. Payne’s guilty plea should be withdrawn.

So, when you do not have the means, or evidence, to prove the truth, and the government, through discovery, has only provided that which offers no substantiation of the truth, you have little choice but to capitulate.  But, wait, the government was withholding that exculpatory evidence until after the plea agreement was signed.

So, it appears that those three conditions necessary for the Judge to grant his Withdrawal, are clearly supported in the Motion.

Finally, what Ryan is seeking is, “a trial by jury at a date and time to be determined.”

This is a rather interesting turn-around and creates an even more interesting dilemma for Judge Anna Brown.  It would be difficult to join Ryan with the remaining Oregon defendants, since their trial will be going on at the same time as the Nevada (Bundy) trial, in February.  This would require either rescheduling the next Oregon trial to avoid that conflict, or try Ryan separately, at some other time.

However, what led to this are the mountains of Discovery information, and then the Prosecutors feeding out only inculpatory evidence, leaving the defense attorneys to paint a rather dismal picture, concerning being able to obtain a not guilty verdict.  And, as pointed out, above, the threats of a 30-year sentence cannot even be considered, as they, unlike the plea agreement and transcript, are not a part of the Record.

This is just one more instance of chicanery by the government’s Department of Justice that leads to many thousands of plea agreements, and no fair hearing in court.  It also provides us even more insight into the technique of spying, not on foreign enemies or foreign governments, but on the people of this country;  Those  who tend to believe that the government continues to eliminate, piece by piece, those fundamental rights the Founders fought for, and then embodied in the Constitution, almost 230 years ago.

Note: There is an article, written by Ryan Payne, posted today, at “Bundy Affair“. It includes some discussion of the events related to the Burns event.