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Jason Patrick, Pro Se c/o Andrew M. Kohlmetz, OSB #955418 Kohlmetz Steen & Hanrahan PC 741 SW Lincoln Street Portland, OR 97201 Tel: (503) 224-1104 Fax: (503) 224-9417 Email: andy@kshlawyers.com
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION
UNITED STATES OF AMERICA, Plaintiff, vs. JASON PATRICK, Defendant
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Case No. 3:16-CR-00051-BR-09 MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS COUNT ONE OF THE SUPERSEDING INDICTMENT: COLLATERAL ESTOPPEL
“While we had hoped for a different outcome, we respect the verdict of the jury and thank them for their dedicated service during this long and difficult trial.” United States Attorney for the District of Oregon, Billy J. Williams, October27, 2016.
On October 27, 2016 after a jury trial lasting more than six weeks, seven co-defendants were acquitted of Count One charging defendants collectively with Conspiracy to Impede Federal Officers by Force, Intimidation or Threats. The self-avowed leaders of the protesters charged as criminal conspirators, Ammon and Ryan Bundy, were among the seven defendants acquitted.
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Based on the exhaustive record and evidence produced at this first trial, and the unique circumstances of this case, Mr. Patrick Moves this Court for an Order preventing the government from re-litigating the issue of whether or any of the unconvicted defendants participated in a criminal conspiracy as alleged in Count One of the Superseding Indictment. That count reads in pertinent part as follows: COUNTl (Conspiracy to Impede Officers of the United States) (18 U.S.C.§ 372) 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. Prior to trial, the Government chose to dismiss all charges against defendant, Peter Santilli. The seven defendants acquitted after jury trial were Ammon and Ryan Bundy, Shawna Cox, David Lee Fry, Jeff Wayne Banta, Kenneth Medenbach, and Neil Wampler. The following defendants had earlier entered pleas of guilty to Count One: Jon Ritzheimer, Joseph O’Shaughnessy, Ryan Payne, Brian Cavalier, Blaine Cooper, Wesle Kjar, Corey Lequieu, Jason Charles Blomgren, Geoffrey Stanek, and Eric Lee Flores. The seven defendants
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remaining for trial are: Jason Patrick, Duane Ehmer, Dylan Anderson, Sean Anderson, Sandra Anderson, Jake Ryan and Darryl Thorn.
The Doctrine of Collateral Estoppel is of Constitutional Magnitude. Collateral estoppel “precludes the Government from relitigating an issue that was necessarily decided by a jury trial’s acquittal in a prior trial. Yeager v. United States., 557 U.S. 110, 118 (2009). The United States Supreme Court first applied collateral estoppel to a criminal proceeding as a “fundamental principle of justice” in United States v. Oppenheimer. 1 Subsequent cases recognized that the doctrine could apply to bar prosecution after acquittal on related charges. 2 The Court first announced that criminal collateral estoppel had constitutional underpinnings in Ashe v. Swenson, 397 U.S. 436 (1970). The Court in Ashe, held that the collateral estoppel doctrine was firmly rooted in the Fifth Amendment’s Double Jeopardy Clause. Id., at 446-7. The Double Jeopardy Clause embodies two “vitally important principles:” First that the government should not be allowed repeated attempts at convicting an individual for the same offense; Second that the finality of judgments be preserved. Yeager, 557 US. at117-18. The collateral estoppel doctrine also implicates the Due Process Clause of the Fourteenth Amendment. The Due process foundation for the application of the doctrine was first alluded to in Oppenheimer, supra. 3 Such a due process based claim was considered
1
242 U.S. 85, 88 (1916) See for example United States v. Adams, 281 US 202 (1930)(prior acquittal not a bar to prosecution for broader though related allegations), and Sealfon v. United States, 332 U.S. 575, 578 (Under some circumstances acquittal on a conspiracy charge may bar subsequent trial on underlying offense.) 3 See U.S. ex.rel. DiGiangiemo v. Regan, 528 F.2d 1262, 1265-66 (2d. Cir. 1975)(While it was unnecessary to determine in Oppenheimer, whether criminal 2
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and rejected by the United States Supreme Court in Dowling v. U.S. 4 In Dowling, the Court held that while the collateral estoppel doctrine bars subsequent litigation on an issue of “ultimate fact” once determined by a valid and final judgment. Dowling, 493 U.S. at 34750. However, collateral estoppel does not bar all subsequent use of evidence simply because that evidence relates to an acquitted charge. Id., Applying a Double Jeopardy-based argument the Dowling Court held evidence of the defendant’s identification in a robbery case in which he had been acquitted was admissible in a subsequent trial for a separate robbery. Id. The Court ruled that, a prior acquittal does not preclude the government from re-litigating an evidentiary issue from the first trial in a subsequent proceeding when its admission in the second trial is governed by a lower standard of proof. Id. at 349 The Court then went on to analyze whether the admission of the “acquitted evidence” from the first trial violated the Due Process Clause’s guarantee of “fundamental fairness.” Id., at 352-354. The Court held, under the circumstances presented it did not. The Court ruled that the trial court’s jury instructions, and its authority to exclude prejudicial evidence amply protected Dowling from any unfairness engendered by the admission of the evidence. Id, at 353-4. Application of the collateral estoppel doctrine in a criminal case is to be applied on a case-by-case basis, with a common sense analysis of whether the issue decided should be given preclusive effect in the subsequent proceeding: The federal decisions have made clear that the rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality. Where a previous
collateral estopel had Constitutional footing, “overly sensitive ears are not needed to detect due process overtones in Mr. Justice Holmes' statement,..”) 4
493 U.S. 342 (1990) MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS COUNT 1: COLLATERAL ESTOPPEL 4
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judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to ‘examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.' The inquiry ‘must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.’ Sealfon v. United States, 332 U.S. 575, 579, 68 S.Ct. 237, 240. Any test more technically restrictive would, of course, simply amount to a rejection of the rule of collateral estoppel in criminal proceedings, at least in every case where the first judgment was based upon a general verdict of acquittal. Ashe v. Swenson, 397 U.S. 436, 444, 90 S. Ct. 1189, 1194, 25 L. Ed. 2d 469 (1970), See also, Yeager v. U.S., 557 U.S. 110, 119-120 (2009).
Application of Collateral Estoppel Beyond Traditional Double Jeopardy Federal Courts have struggled with applying the doctrine of Collateral Estoppel in criminal cases in cases which do not fit squarely within the Double Jeopardy Clause’s protection afforded to a single defendant in a subsequent prosecution for a related offense. These types of cases are said to involve “nonmutual collateral estoppel.” That is, collateral estoppel where one party to the current litigation is not the same as in the prior litigation. In this case, based on the jury’s acquittal of the first seven defendant’s, jointly charged codefendants in a subsequent trial seek to preclude the government from litigating whether there existed a criminal conspiracy as alleged in Count One The lead Supreme Court case on the use of nonmutual collateral estoppel in criminal cases is Standefer v. U.S. 5 Standefer, involved a situation where a defendant charged as a principle, and another as an aider and abettor were charged in separate indictments. In the first trial the principal, Niederberger, was convicted of some of some substantive offenses
5
Standefer v. United States, 447 U.S. 10 (1980) MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS COUNT 1: COLLATERAL ESTOPPEL 5
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and acquitted of others. Defendant Standefer, in a separate criminal case moved to dismiss the counts in which he was charged with aiding and abetting the acts for which Niederberger had been acquitted. The Court in Standefer listed four primary reasons why Niederberger’s prior acquittals did not have preclusive effect in Standefer’s trial. First, the Government may not have had a full and fair opportunity to litigate the particular issue in the first trial, stating more precisely: Several aspects of our criminal law make this so: the prosecution's discovery rights in criminal cases are limited, both by rules of court and constitutional privileges; it is prohibited from being granted a directed verdict or from obtaining a judgment notwithstanding the verdict no matter how clear the evidence in support of guilt; it cannot secure a new trial on the ground that an acquittal was plainly contrary to the weight of the evidence; and it cannot secure appellate review where a defendant has been acquitted. The absence of these remedial procedures in criminal cases permits juries to acquit out of compassion or compromise or because of “ ‘their assumption of a power which they had no right to exercise, but to which they were disposed through lenity.’ Standefer v. United States, 447 U.S. at 22 (internal citations omitted). Second, different rules of evidence and exclusion may apply to either defendants, and the government may not have been able to submit all of the evidence in the first trial that it might seek to introduce in the second.
The application of nonmutual estoppel in criminal cases is also complicated by the existence of rules of evidence and exclusion unique to our criminal law. It is frequently true in criminal cases that evidence inadmissible against one defendant is admissible against another. The exclusionary rule, for example, may bar the Government from introducing evidence against one defendant because that evidence was obtained in violation of his constitutional rights. And the suppression of that evidence may result in an acquittal. The same evidence, however, may be admissible against other parties to the crime “whose rights were [not] violated.” In such circumstances, where evidentiary rules prevent the Government from presenting all its proof in the first case, application of nonmutual estoppel would be plainly unwarranted
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Id., 447 U.S. at 23 (internal citations omitted). Third, the Court noted that judicial economy, a primary justification for application of preclusion, would not be served by allowing pretrial hearings to determine whether or not any evidentiary rulings in the first case had deprived the government of a full and fair opportunity to present its case. Id, at 24. And fourth, the Government’s interest in the enforcement of criminal law may outweigh the interests of affording the government only one full and fair opportunity to litigate an issue. Id. at 24-5. In short, the two separate trials of separately charged defendants, were sufficiently different in scope and nature as to deny Niederberger’s acquittal preclusive effect in Standefer’s case. Courts have come to different conclusions as to the scope of its Standefer’s, holding. Some indicate that it is an absolute bar to nonmutual collateral estoppel in a criminal case. 6 Others allow for the application of the doctrine in limited circumstances. For example, in a 1988 case the Ninth Circuit stated the “mere fact” that a codefendant has been acquiited is not determinanat of whether other persons not acquitted or even tried may be subject to prosecution. United States v. Bernhardt, 840 F.2d 1441, 1452 (9th Cir. 1988). United States Supreme Court cases since Standefer also support the potential application of nonmutual collateral estoppel in criminal cases. In 1984, the Supreme Court touched on the ruling in Standefer and stated under the particular set of circumstances presented therein “we refused the protection of non-mutual collateral estoppel where the protection had as its basis the assumption that a criminal jury had acted in a rational manner.” United States v. Powell, 469 U.S. 57, 66, (1984), Footnote 7 (citing
6
See for example,United States v. Valdez-Soto, 31 F.3d 1467, 1476 (9th Cir. 1994)(“The Supreme Court has held that non-mutual collateral estoppel does not apply against the government in criminal prosecutions.” (Citing Standefer v. United States, 447 U.S. 10, 21-24 (1980); and United States v. Bernhardt, 840 F.2d 1441, 1450-1452 (9th Cir.), cert. denied, 488 U.S. 954 (1988)), and United States v. Gambina, 988 F.2d 123 (9th Cir. 1993)(unpublished opinion)) MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS COUNT 1: COLLATERAL ESTOPPEL 7
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Dunn v. United States, 284 U.S. 390 (1932)(further internal citations omitted). Again, in 1990, The Court noted the following in reference to the Standefer holding: In Standefer, the Court held that a defendant could not invoke the acquittal of the principal as a bar to his prosecution as an accomplice. Although the Court noted that collateral estoppel should be applied sparingly against the Government, the defendant in Standefer had not yet been tried. Thus, the concerns which protect a defendant against relitigation were not implicated. When those concerns are implicated, they outweigh any need to apply collateral estoppel cautiously against the Government. Dowling v. United States, 493 U.S. 342, 361 (1990), Footnote 3. Powell, and Dowling, endorse the notion that nonmutual collateral estoppel may be applied in some circumstances, though “cautiously,” in cases where the party seeking preclusion has not yet been tried.
This Court should preclude the government from re-litigating the existence of a conspiracy as alleged in Count One. What can be gleaned from a fair reading of these cases is that the mere fact of an acquittal in a prior proceeding does not give rise to preclusive effect in any subsequent proceeding. Rather, in criminal cases involving nonmutual collateral estoppel, the court should apply the doctrine sparingly and with caution. With that in mind the court should turn to the realistic and practical approach endorsed in Ashe, supra. This court should examine the record of the prior proceeding, including the pleadings, evidence, charge, and jury instructions and determine whether a rational jury could have grounded its verdict upon an issue other than that which these defendants seek to foreclose from consideration. That is that any of the 7 tried defendants engaged in a criminal conspiracy with these defendants or anyone else. This case is distinguishable from Standefer and others which have refused to apply nonmutual collateral estoppel against the government. First, this is a case in which separate
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defendants are charged jointly with Conspiracy to Impede Officers of the United States in violation of 18 U.S.C. § 372. As this Court has noted, this charge does not require proof of any overt act. The charge is made and proved on the criminal agreement itself. In a general conspiracy trial the government must prove at least one overt act in support of the conspiracy occurred within the statute of limitations. See United States v. Chhun, 744 F.3d 1110, 1122 (9th Cir.), cert. denied, 135 S. Ct. 131, 190 L. Ed. 2d 100 (2014). As to Count One, the government’s case as to all defendants is not dependent on proof of the commission of any act in furtherance of the conspiracy. The government must prove only a criminal agreement. On this issue, the government had more than a full and fair opportunity to litigate. The charge was the subject of much jointly raised pre-trial litigation and evidentiary rulings that applied to all defendants whether they were tried in the first round or not. Evidence of the acts and statements of the alleged conspirators both tried and untried was admitted into evidence on the issue of whether or not there was in fact a criminal conspiracy, as well as to tehstate of mind of the alleged conspirators. The Court gave both sides wide latitude in offering evidence relevant to the charge. Those acquitted included the self-professed leaders of the protest Ammon and Ryan Bundy. A second trial would be nothing more than the government seeking a second, vindictive bite at the apple in the hopes that a second jury might come, for whatever reason, to a different conclusion that jury number one. Hardly the respect for the verdict that the AUSA espoused only weeks ago. Moreover, we have in the juror notes and even public statements from juror # 4, in addition to the pleadings, evidence and other records in the case, that clearly indicate the jury in the first trial acted rationally and concluded that the government failed entirely to prove a conspiratorial agreement to impede between the defendants, or anyone else for that matter. There
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is no evidence to suggest that this jury acted irrationally or contrary to its instructions. It is clear from juror # 4’s statements that “lenity” was not an issue. Nor was it a case of “jury nullification” The Standefer, Court’s concerns concerning judicial economy are simply not present in this unique case. A retrial will involve substantially the same evidence and witnesses and will involve litigation of the very same question: The existence of a conspiracy to impede federal officials in their duties at the Malheur National Wildlife Refuge. A brief examination of the record to determine whether preclusion is appropriate will have no impact on a multiweek jury trial on the same issues recently and exhaustively litigated, whereas a determination that preclusion is appropriate under the unique facts and circumstances of this case would save the parties, the court, the public and the potential jurors a vast amount of time and resources. Lastly, the government’s interest in prosecuting crime is but one component in the larger duty to see that justice is done. What is the point to be served in prosecuting demonstrably lessculpable defendants on the very same evidence that resulted in the acquittals of not only their alleged leaders, but of other defendants similarly situated?
RESPECTFULLY SUBMITTED This 6th day of December, 2016.
Jason Patrick ________________________________ Jason Patrick, Pro Se
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