Former Federal Prosecutor Lays Out Likely Path For Refuge Trial

Federal prosecutors and defense attorneys on either side of the Malheur National Wildlife Refuge occupation may not agree on many details of the case, but both sides readily describe it as complicated and largely unprecedented.

A total of 26 defendants are charged in the Oregon case, and several — including occupation leaders Ammon Bundy, Ryan Bundy and Ryan Payne — also face charges related to a 2014 standoff at the Nevada ranch of Cliven Bundy, the father of Ammon and Ryan Bundy.

To better understand what these intertwined cases may look like as they play out in court, OPB's Think Out Loud spoke Monday to former federal prosecutor Martin Estrada.

Estrada oversaw organized crime prosecutions for the U.S. Attorney's Office in Los Angeles before becoming a partner in the firm Munger, Tolles & Olson.

Possible Prosecution Plan

Estrada said federal prosecutors in Oregon, Nevada and Washington, D.C. are all likely coordinating with each other to avoid jurisdictional infighting that could otherwise slow the cases.

Additionally, he said the government's attorneys will try to negotiate plea deals with refuge occupiers who played a less central role.

“From the prosecution’s perspective, I’d think they’d want to have fewer defendants at trial,” Estrada said. "When you have this many defendants, as I mentioned, some of the less culpable defendants … they may get lost in the shuffle, and the jury may not find them responsible for the entire conspiracy."

He added that the government may try to use some of the more serious charges in the case as leverage to get guilty pleas against defendants on a federal conspiracy charge. Estrada said a conspiracy plea may only carry a sentence of two or three years in prison.

“I think the likely scenario is, from the government’s perspective, they don’t want a 26-defendant trial. And they certainly don’t want multiple trials," he said. "They don't want to have to present this case multiple times."

A Political Defense

The occupation of the wildlife refuge near Burns, Oregon, was well documented by the media and the occupiers themselves, who would often post their activities on social media.

Despite that documentation of potential evidence, Estrada said the political nature of the actions by Ammon Bundy and others could pull some jurors to their side.

“The complication I think becomes this protest element to it, and what is often referred to in legal circles as a ‘jury nullification defense,’ where the defendants are likely to try to make this into some kind of show trial — try to put forward their political agenda — to convince jurors not to convict them," Estrada said.

If defense attorneys can convince jurors that the occupiers' actions were in earnest against federal overreach, as Bundy and others often described themselves, then the jury may see the occupation as an act of civil disobedience rather than illegal activity.

Estrada said prosecutors are likely to use the jury selection process as a way to weed out people who may be swayed by that argument.

The Role Of Sentencing

Part of the reason Ammon Bundy said he came to Oregon was to protest mandatory minimum sentencing laws used to send two Harney County ranchers — Dwight and Steven Hammond — to prison.

Now, Bundy and a few other occupation leaders face mandatory minimum sentences for a charge of using or carrying a firearm in relation to a crime of violence.

“That charge is a very serious one because it has a mandatory minimum sentence, in this case five years, and that mandatory minimum sentence is required to run consecutively,” Estrada said.

He added that defense attorneys may bring up mandatory minimum sentences to bolster their argument the occupiers were political protesters rather than militants.

“However, under the law, the sentence for the crime is not something the jury is supposed to consider," Estrada said, adding that prosecutors may try to get a motion barring sentencing from being brought up in trial.

Unnamed Defendant

Though many of the defendants, such as the Bundys and deceased militant Robert "LaVoy" Finicum, became household names after the 41-day standoff in Oregon, other occupiers came and went from the refuge largely out of public sight.

In the government's latest set of charges against the occupiers, one name has been redacted, leading to speculation of whom that person may be.

Estrada said there are likely two reasons why the government isn't revealing the mystery person.

First, the person could be a fugitive and won't be named until she or he is arrested. That was the case with the remaining four occupiers at the refuge — David Fry, Jeff Banta, Sean Anderson and Sandy Anderson — who remained unnamed in indictments until their arrests.

The other scenario is that the person is cooperating with the government against the other occupiers, Estrada said.

If that's the case, the person's name may never be officially revealed.

"At some point the name may be redacted or you may have a superseding indictment where that name is removed,” Estrada said.