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United States v. Patrick

United States District Court, D. Oregon

February 10, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JASON PATRICK, DUANE LEO EHMER, DARRYL WILLIAM THORN, and JAKE RYAN, Defendants.

          ORDER FOLLOWING FINAL PRETRIAL CONFERENCE

          ANNA J. BROWN United States District Judge.

         On February 7 and 8, 2017, the Court conducted a Final Pretrial Conference with the parties. The Court issues this order to confirm the rulings at the Pretrial Conference:

         NUMBER OF ALTERNATE JURORS AND PEREMPTORY CHALLENGES

         The number of Defendants going to trial beginning February 14, 2017, is now four. As a result, the Court reconsidered with the parties the number of alternate jurors to seat. Although the Court previously planned to seat six alternate jurors (see Jury Management Order (#1709) issued January 13, 2017, at 8), based on the parties' agreement, the parties' updated trial-time estimates, and the Court's own assessment of need, the Court now intends to seat four alternate jurors in addition to the 12 trial jurors.

         At the Pretrial Conference the parties jointly recommended the Court allocate 15 peremptory challenges to Defendants collectively for the 12 trial jurors and 9 peremptory challenges for the government for the 12 trial jurors. The parties also jointly recommended each side (Defendants collectively and the government) to be allocated two additional peremptory challenges for alternate jurors.

         The Court finds the parties' joint recommendations to be reasonable, and, in the exercise of its discretion pursuant to Federal Rule of Criminal Procedure 24, allocates 15 peremptory challenges to Defendants collectively for trial jurors and 9 peremptory challenges to the government for trial jurors. In addition, the Court allocates two peremptory challenges each to Defendants collectively and to the government for alternate jurors.

         DEFENDANTS' MOTION (#1683) TO EXCLUDE EVIDENCE OF ARCHAEOLOGICAL DAMAGE

         Defendants move to exclude evidence regarding the following subjects:

a) that particular areas of the Malheur National Wildlife Refuge pMNWR") were archeologically significant sites; b) that any of defendants actions threatened the integrity of those sites; c} that the use of heavy equipment to move dirt had some impact on the archeological value of any site; d) that any artifacts were damaged as a result of the use of heavy equipment; or e) that the government chose to conduct an archeological exploration of the dirt moved by heavy equipment, and the cost to the government of that choice.

Defs.' Mot. (#1683) at 1-2. The government, on the other hand, responds that some such evidence is relevant to demonstrating the value of the damage caused by the conduct charged in the Depredation of Government Property counts.[1]

         At the Pretrial Conference the parties represented they have reached a stipulation that renders moot the government's need to provide evidence of the value element of the Depredation of Government Property counts, and, therefore, Defendants' Motion is moot.

         Accordingly, on this record the Court DENIES as moot Defendants' Motion (#1683) to Exclude Evidence of Archaeological Damage. The Court directs counsel for the government and for Defendants Duane Leo Ehmer and Jake Ryan to file their stipulations as to this issue no later than Noon, Monday, February 13, 2017.

         DEFENDANTS' MOTION (#1776) IN LIMINE TO EXCLUDE EVIDENCE NOT ATTRIBUTED TO A SPECIFIC ALLEGED CO-CONSPIRATOR

         At the Pretrial Conference the Court considered with the parties Defendants' Motion (#1776) in Limine to Exclude Evidence Not Attributed to a Specific Alleged Co-Conspirator. The general groups of evidence discussed at the Pretrial Conference were (1) firearms found on the MNWR after the occupation ended; (2) a safe, filing cabinet, and door that the government alleges were damaged by co-conspirators; and (3) photographs of the MNWR after the occupation that show a general state of disarray. Although the Court agrees with the government in general that evidence need not be attributable to a specific co-conspirator to be admissible, the government, ...


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