Tuesday, August 30, 2016

Why LaVoy Finicum's Shooting & FBI Cover-up May be Relevant to Conspiracy Defense: Did the Government Act in Bad Faith?

In the Malheur protest case, the evidence lost from the scene of the shooting of LaVoy Finicum and the arrest of the protesters is irreplaceable and taints the reliability of the entire investigation that is not remedied by merely being pointed out to a jury, which the court has ruled cannot even be done. The decision by the court to preclude the evidence of the shooting of Finicum may not at this point be error reversible on appeal, as the record created by the defendants may be insufficient for her to have made the determination correctly.
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In the alternative to dismissal, a defendant could request exclusion of all post-shooting evidence to level the playing field and address this egregious due process violation.  Unfortunately, because the government has selectively released information to the public while attempting to use the Court’s power for a protective order to gag the defendants, they selectively released a video with their chosen narrative.  They did so while knowing that they were releasing information about an FBI cover-up, but chose, suspiciously, to not include that in their explanation, which was a thinly veiled attempt to vilify Mr. Finicum, the very man they killed.

Why have guns at a political protest? Is it reasonable in light of perceived prior FBI overreach at Waco, Ruby Ridge, & Bundy Ranch?

This is an interesting a question that a jury should potentially be tasked to answer.  However, it is unclear if any defendant is raising the issue at this point according to a government memorandum that said, "Defendants have not formally provided notice that they are seeking a self-defense instruction."  

The argument is essentially this: Since the conclusion of the occupation, the protesters have been arguing that through their effectiveness at marshaling First and Second Amendment protections, they frustrated and lawfully provoked their government  - and they did so by exercising statutory and constitutional rights - in their most pristine and classic forms. However, it appears the executive branch of government didn't tolerate it.  Reportedly, the FBI caused the protest to escalate due to the FBI’s interference with the First Amendment right to petition representatives in a redress of grievances.  It has been reported that the FBI told certain elected officials not to respond to any of the petitions regarding the Hammonds, including the official Notice of Redress of Grievances.  The FBI reportedly interfered with and stopped this process of a republican form of government, an important safety valve in a constitutional republic, causing additional frustration in the protesters and activists. 
FBI agents in Burns
(Jim Urquhart/Reuters)
In contrast to the astute (albeit novel) peaceful protest at the refuge, prior to the ambush, the FBI began their show of force during the FBI’s militaristic occupation of Burns, Oregon and Harney County. They built up a military-like presence by taking over the local airfield.  They carried guns around town in tactical positions, intimidating locals and attempting to put the protesters in fear of imminent deadly force, purportedly in hopes of provoking them to respond when an ambush was eventually employed. 

The Death of LaVoy Finicum

The evidence indicates that just hours before Mr. Bundy, his colleague LaVoy Finicum, and others were to give a public presentation on land rights topics to hundreds of Oregon supporters who had gathered in neighboring Grant County, Oregon government officials concluded, as Senator Ron Wyden phrased it, that the “virus” of this particular political speech “was spreading” and there “had to be consequences.”  Apparently, included in the “consequences” sought by the government was using deadly force on fellow protesters and an 18-year old girl who had never threatened anyone as they rounded a corner and approached a “deadman’s roadblock,” a roadblock with serious risk that a collision is inevitable due to line of sight and other attendant circumstances.  Effectively, the agents of the government made up their mind to fire at the protesters after they rounded the corner sending a fairly explicit message as to the perceived intentions of the government.

These shots were fired after agents acknowledged that there were women in the car, as heard on Ryan Bundy’s cell phone recording.  The agents also knew that their ambush blockade was impenetrable due to the size of the vehicles, their positioning, and the snowbanks flanking their position, rendering deadly force unreasonable and unnecessary.  But, nonetheless, they positioned officers behind the collision zone either out of carelessness or to give an excuse to shoot at anyone who approached this impenetrable blockade at a high speed.
FBI Agent hidden in collision zone

Less-than-lethal rounds
The “deadman’s roadblock” was in fact employed and at least one vehicle was shot at while stopped (purportedly with a less-than-lethal round which to the occupants would have been indiscernible to a lethal round).  Possibly believing that they were likely facing imminent deadly force, Finicum sought to turn himself in to a county law enforcement officer who he believed could protect their personal safety, given what he knew about government force in protest situations, In his mind and the others in the truck, was the killing of Randy Weaver’s wife while holding their infant son at Ruby Ridge, the burning of the Branch Davidian compound at Waco, killing women and children, and the government’s purported sniper positions during the Bundy Ranch protest).

Here's the thing: the reports of government overreach in the past doesn't even have to be true to be relevant to someone's state of mind in possessing firearms at a protest or driving away from a police stop. It just has to be reasonable for them to believe it.  And whether it's reasonable to believe the stories and photos about the Bundy Ranch's government snipers (pictured above) is for the jury to decide. 
"Here's the thing: the reports of government overreach in the past doesn't even have to be true to be relevant to someone's state of mind in possessing firearms at a protest or driving away from a police stop."
I myself, while touring the Bundy Ranch earlier this year, heard terrifying firsthand accounts from women with children alone on back roads having sniper guns leveled at them. It's likely that Finicum and others heard the same stories which affected their state of mind at the protest and at the arrest. And evidence of their subjective state of mind at the protest is their reaction to the government ambush. Furthermore, evidence of the government's response and cover-up is evidence of the objective reasonableness of such belief. In effect, it's a subsequent "bad act" relevant under FRE 404. 
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Was it reasonable to believe that they were at grave risk given the circumstances? Was it reasonable for them to believe that, with the backdrop of Waco, Ruby Ridge, and Bundy Ranch, and the fact that they had been available for arrest when in public, something was amiss when they were approached on a vacant highway far away from help and out of cell phone range?   Lavoy Finicum even announced where they were heading and invited the federal agents to follow.  However, his fear turned out to be prophetic as the ambush was waiting for them. Inexplicably, agents of the government shot at the vehicle, using unlawful deadly force, and then saying the magic words of “fear,” “imminence,” and “training and experience” to law enforcement investigating the death.  Agents of the government still tried to spin the narrative as they covered up their use of deadly force by hiding bullet casings that would show the truth, which may be a constitutional Due Process violation as described below.
Fire at Branch Davidian Compound in Waco

Investigating the Investigators

Not knowing that there was an active cover-up of evidence in this case, after the shooting, I requested in open court to have an investigator present while the FBI was processing the evidence.  The Government replied, by breathtakingly citing Youngblood and saying that “[h]ere, defendants have proffered nothing to establish that the FBI ERT personnel are not processing the scene meticulously and collecting the physical evidence using their best efforts and with the utmost good faith.”  Government’s Second Response to Defendants’ Motions for Site Access, p. 4.  The Government went on to argue that “Defendant Ammon Bundy complains that without his requested order he will ‘be forced to depend on the good will and diligence of State actors’ to do their job properly…as if that is anything but the normal and well-settled practice in criminal matters.”

The Government argued this to the court, as FBI agents were under investigation for a cover-up where a political protester was killed by his government.  The cognitive dissonance it must take to make such an assertion to the court in these circumstances is astounding and is likely due to agents not properly notifying the US Attorney’s office of the ongoing constitutional violations and cover-up investigations.  As more information later came out, it showed that the protesters were right to suspect the government that killed their friend and then attempted to cover up what happened afterwards. 
"Not knowing that there was an active cover-up of evidence in this case, after the shooting, I requested in open court to have an investigator present while the FBI was processing the evidence."
In response to my request, the Court determined that any prejudice was speculative given the representations by the government. The Court was not candidly informed that there were already allegations of an FBI cover-up for unknown reasons (i.e., the FBI, DOJ and the deadly force investigators may have hidden the cover-up from the US Attorney’s Office). The facts of this cover-up, the FBI Hostage Rescue Team’s (HRT) place in the chain-of-command, the evidence affected, who directed the lack of body cameras, etc. should have been fleshed out in the evidentiary hearing, as these facts are actually relevant and important to the case as set forth below.

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Notwithstanding the repeated use of deadly force by the government, it is an impressive fact that no force was ever used and no firearms were ever fired by any protester prior to the ambush. They never even lifted or pointed a gun or held a gun in intimidation, as the FBI was routinely doing in Burns.  In fact, the evidence shows that it was Ammon Bundy’s leadership that helped keep things peaceful, along with several others like his brother Ryan Bundy who stayed calm and peaceful in the back of LaVoy Finicum’s pick-up, with multiple weapons at his disposal, and who did not return fire during a hailstorm of bullets and the ultimate killing Mr. Finicum.  Ryan Bundy possibly faced unlawful force by the agents of the government and ironically may have entirely within his rights to defend himself with deadly force given State v. Oliphant, 221 Or App 384 (2008), if he reasonably believed unlawful deadly force was being used against him (i.e., the shooting at the moving vehicle after rounding the corner and not knowing that prior and subsequent shots were less-than-lethal rounds.)
One firearm found in Finicum's pickup.
Given that restraint and the absolute peacefulness of this protest, it is appalling that the government resorted to violence and death which were clear Fourth Amendment violations.  See Tennessee v. Garner, 471 U.S. 1 (1985). However, this case could potentially be put to rest via dismissal due to the gross Due Process violations that have occurred on video and other yet-to-be-explored constitutional violations for which video was not fortunate enough to be present due to the likely deliberate choices of the agents who failed to wear body cameras or activate their in-car videos or who destroyed video footage.
There are screen shots of agents who appear to be wearing head cameras although they could be audio equipment (by ABC News video).
ABC News Video Screenshot

Why is Finicum Shooting Relevant to the Conspiracy Case?

The destruction of evidence of the killing of a government protester is the epitome of a Due Process violation that strikes at the very heart of what processes are due to a citizen. The plot for the ambush and decisions leading up to this are clearly relevant to bias and motive to fabricate and the killing of a defense witness and the destruction of evidence illustrated that bias on the part of the Federal Government.  The FBI HRT marksmen “missed” when firing at LaVoy Finicum for one of three possible reasons: they missed (1) by accident and contrary to their marksmen training; (2) on purpose to provoke a protester to return fire justifying use of deadly force against them; or (3) to provoke OSP to fire on the protesters. These issues and more illustrate Due Process violations linked to the destruction of evidence and should be explored in the evidentiary hearing before trial and possibly at trial before the jury.

The Case Law on Destruction of Evidence

I.               The killing of a defense witness and the destruction of evidence by the FBI Hostage Rescue Team may be a violation of constitutional Due Process rights.  

            The government destroyed evidence and killed a witness in a high-profile case and defendants and defense counsel had to learn of it from journalists.  But does that have any legal significance to the criminal case? A due process violation can occur when the Government fails to preserve potentially useful evidence, fails to provide favorable evidence, or fails to preserve favorable evidence in the Government’s possession.  Federal precedent establishes three separate and distinguishable analyses that could arise out of the Government’s destruction of evidence, set forth below in Brady v. Maryland, 373 US 83, 87 (1963), California v. Trombetta, 467 US 479, 488 (1984), and Arizona v. Youngblood, 488 US 51, 57 (1988).

"The government destroyed evidence and killed a witness in a high-profile case and defendants and defense counsel had to learn of it from journalists."

As demonstrated in United States v. Cooper, 983 F2d 928 (1993), and United States v. Bohl, 25 F3d 904 (1994), there is more than one way to determine whether Trombetta or Youngblood applies. In Cooper, for example, the court started initially with the existence of bad faith before moving on the other factors of the Trombetta analysis. United States v. Cooper, 983 F2d at 931. In Bohl, the court began with the importance of the destroyed materials and used its determination of the value of the lost evidence to continue with the Youngblood analysis. United States v. Bohl, 25 F3d at 910. Regardless, it seems that the first task of importance is to decide which law applies. There are three options when the Government fails to provide evidence: 

A.                                  The Government fails to provide favorable evidence in its possession (bad faith irrelevant).

            A due process violation occurs when the prosecution fails to provide evidence favorable to a defendant upon request, where the evidence is material to either guilt or punishment. Brady, 373 US at87 (1963). If the evidence is favorable to the defendant and material to guilt, the good or bad faith of the prosecution is irrelevant. Id. at 87. Under Brady, and more recently, Strickler v. Greene, 527 US 263, 281-282 (1999),[1] a defendant must prove the following:

B.                                 The Government fails to preserve favorable evidence in its possession.

Under California v. Trombetta, 467 US 479, 488 (1984), to prove a due process violation for the failure to preserve favorable evidence, the defendant must prove the following:

C.                                   The Government fails to preserve potentially useful evidence in its possession.

Arizona v. Youngblood, 488 US 51, 57 (1988), set apart due process violations involving destruction. To prove a due process violation for the failure to preserve potentially useful evidence, the defendant must prove the following:
This case is about destruction or failure to preserve evidence rather than a failure to provide evidence in the Government’s possession. Thus, the appropriate analysis will be Youngblood and/or Trombetta. While the principles of Brady are persuasive, the Court’s determination does not fall to Brady per se. Regardless, Defendant asserts that whether this case falls within the confines of Youngblood or Trombetta is an important but moot point, since he can prevail with each analysis.

II.                The determination of bad faith in the context of a due process violation for the government’s failure to preserve evidence is challenging because there is no specific criteria established.

 Youngblood provided the specific test involving bad faith, has been applied so broadly throughout the United States.  However it does not specifically provide a concrete explanation for what constitutes bad faith. In the context of explaining the importance of good/bad faith when the government is alleged to have lost evidence, the Youngblood court referenced the requirement that the defendant make a showing that the government intentionally delayed to gain a tactical advantage as set forth in United States v. Marion, 404 US 307 (1971), and the government’s deportation of illegal aliens who possess evidence favorable to a defendant in United States. Valenzuela-Bernal, 458 US 858 (1982). These references mean that the Youngblood court meant to convey that bad faith is found when the government intentionally delays to gain a tactical advantage, and when the government deports an an illegal alien knowing that the witness possessed evidence favorable to the defendant in a criminal prosecution.
            In a footnote, the Youngblood court stated:
The presence or absence of bad faith by the police for purposes of the Due Process Clause must necessarily turn on the police’s knowledge of the exculpatory value of the evidence at the time it was lost or destroyed. Cf. Napue v. Illinois, 360 U.S. 264, 269 (1959).
While it is tempting to use this footnote comment in a Youngblood bad faith determination, simply because subsequent cases on this issue lack the apparent clarity of these words (‘bad faith is’ or ‘bad faith means’), Defendant submits that this would be in error. First, the Napue case is from 1959, years before the Youngblood opinion. Second, the footnote discussing bad faith in the context of what police knew or did not know is placed in a paragraph in the Youngblood opinion discussing Trombetta, which is a case that requires a defendant to prove the police’s knowledge of the exculpatory value of the lost evidence. Id. Third, by the very holding in the Youngblood case, (“We therefore hold that unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.”) there is no specific requirement that Defendant prove that the evidence was exculpatory or that police knew of the exculpatory value of the evidence before it was destroyed.
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Trombetta clearly incorporates the Napue case comments about bad faith and police knowledge. Trombetta does not require the proof of bad faith when a defendant can establish the specific elements of the case, primarily because the question of bad faith is already incorporated into the test. Defendant submits that the reason Trombetta does not require a separate bad faith finding is because, if a defendant can satisfy Trombetta (or Brady even) he has essentially established that the police have acted in bad faith. Trombetta describes a very specific kind of bad faith—the kind of bad faith that exists when police know of the value of the evidence to a defendant and then lost/destroyed it anyway. Youngblood and Trombetta are not inapposite.
Certainly if a defendant can satisfy the elements of Trombetta, then the elements of Youngblood have also been established. Exculpatory evidence is, at the very least, potentially useful evidence. But a defendant can satisfy the elements of Youngblood without satisfying the elements of Trombetta. Further, to require that a defendant prove that the police knew of the exculpatory value of the evidence before its destruction to satisfy the Youngblood bad faith requirement muddles the requirements of the two distinct tests into a Youngblood/Trombetta hybrid that does not appear to have been intended in the Youngblood opinion. Defendant submits that this Court should not insert into the opinion that which the United Supreme Court chose not to insert into the opinion. The court chose not to state directly at the time of the holding (or even place the footnote in the holding) that bad faith in the Youngblood context means only the type of bad faith described in Napue. Defendant submits that Napue sets forth one way to establish bad faith, and others exist.
Other Ninth Circuit cases confirm that this court is free to consider other evidence of bad faith, under a more general definition of what bad faith means. Defendant also submits that the Court must utilize the plain meanings of good and bad faith, as well as other descriptions of bad faith, in its review of the evidence. Black’s Law Dictionary at 139 (6th ed. 1990) describes bad faith as follows:
The opposite of “good faith, generally implying or involving actual or construction fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or a contractual obligation, not prompted by an honest mistake as to one’s rights or duties, but some interested or sinister motive. Term “bad faith” is not simply bad judgment or negligence, but rather it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity; it is different from the negative idea of negligence in that it contemplates a state of mind affirmatively operating with furtive design or ill will. (Internal citations omitted).
In contrast, Black’s Law Dictionary p 639 (6th ed. 1990) describes good faith as follows:
Good faith is an intangible and abstract quality with no technical meaning or statutory definition, and it encompasses, among other things, an honest belief, the absence of malice and the absence of design to defraud or to seek an unconscionable advantage, and an individual’s personal good faith is concept of his own mind and inner spirit and, therefore, may not be conclusively determined by his protestations alone. Honesty of intention, and freedom from knowledge or circumstances which ought to put the holder upon inquiry. An honest intention to abstain from taking any unconscientious advantage of another, even through technicalities of law, together with absence of all information, notice, or benefit or belief of facts which render transaction unconscientious. In common usage this term is ordinarily used to describe that state of mind denoting honesty of purpose, freedom from intention to defraud, and, generally speaking, being faithful to one’s duty or obligation. (Internal citations omitted).
In civil cases, away from the issues of good/bad faith of the State in a criminal prosecution, bad faith is:   A conscious wrongdoing or breach of a known duty through some ulterior motive. Davis v. White, 794 F3d 1008 (8th Cir 2015). Not simply bad judgment or negligence, but rather the conscious doing of a wrong because of a dishonest purpose or moral ambiguity, a state of mind affirmatively operating with furtive design or ill will. United States v. Manchester Farming
P'ship, 315 F3d 1176, 1185 (9th Cir 2003).   Not based on honest disagreement or innocent mistake. Dailey v. Integon Gen. Ins. Corp., 331 S.E.2d 148, 155 (1985).  Acting with intent to deceive, harass, mislead, delay, or disrupt. Cf. Leon v. IDX Sys. Corp., 464 F3d 951, 961 (9th Cir 2006).
·         “[S]ynonymous with dishonesty.” Salsbery v. Ford Motor Credit Co., 54 Or App 522, 528 (1981), citing Bank of California etc. v. Portland H & W Co., 131 Or 123, 138-39 (1929).

A.    United State v. Cooper

United States v. Cooper, 983 F2d 928 (9th Cir 1993), is not a case that addresses the legal issue of bad faith; the district court made the determination and the government did not challenge it. Id. at 931. However, this opinion is helpful in the case at bar because it addresses other issues relevant to the determination before the court.
In Cooper, the defendants managed a small chemical laboratory that made legal chemical fuel products. Id. at 929. The DEA suspected them of participating in methamphetamine production. Id. A DEA policy authorized the destruction of hazardous materials which agents discovered when dismantling clandestine labs. Id. at 930. A contractor removed the glassware and equipment at the direction of the DEA and stored it pending disposal. Id.  One of the defendants and his attorney contacted the DEA, requesting that the materials seized be returned. Id. The DEA responded that the materials were being held as evidence. Id.  However, contractor holding the materials was not informed that the items it held should be preserved, and the materials were shipped to a toxic waste dump for burial. Id.
            The defendants were charged with conspiracy to manufacture methamphetamine and maintaining a place to distribute methamphetamine. Id. They moved to dismiss the indictment, arguing that the government violated their due process rights by its bad faith destruction of potentially exculpatory evidence. The motion was granted at the district court level. On appeal, the government only challenged the district court’s determination that defendants could not reasonably obtain evidence comparable in value to the destroyed laboratory equipment. Id. at 931. The court identified the two court cases that set out the test applied to determine when the government’s failure to preserve evidence rises to the level of a due process violation:
In California v. Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528, 2534, 81 L.Ed.2d 413 (1984), the Court held that the government violates the defendant's right to due process if the unavailable evidence possessed "exculpatory value that was apparent before the evidence was destroyed, and [is] of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." In Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 337, 102 L.Ed.2d 281 (1988), the Court added the additional requirement that the defendant demonstrate that the police acted in bad faith in failing to preserve the potentially useful evidence. See also Paradis 954 F.2d at 1488 (explaining Trombetta and Youngblood test).
 Youngblood's bad faith requirement dovetails with the first part of the Trombetta test: that the exculpatory value of the evidence be apparent before its destruction. Trombetta, 467 U.S. at 489, 104 S.Ct. at 2534. The presence or absence of bad faith turns on the government's knowledge of the apparent exculpatory value of the evidence at the time it was lost or destroyed. Youngblood, 488 U.S. at 56-57 n. *, 109 S.Ct. at 336-337 n. *.

Id. at 931.[2] The government argued that the defendants would have been able to obtain comparable evidence of the physical capabilities of the destroyed equipment, by calling expert witnesses or through a jury instruction. Id. The court rejected that argument; it noted that general testimony about the possible nature of the equipment would be an inadequate substitute for testimony informed by its examination, and the pictures taken during the seizure were inadequate to assess the capabilities of the equipment. Id.  The court also concluded:
The court appropriately rejected such an instruction. It would cheat Cooper and Gammill out of the opportunity to establish the weight of their claim to innocence. If the equipment were structurally incapable of methamphetamine manufacture and if the equipment was specially configured for legitimate procedures, that would be powerful, weighty evidence. The proposed jury instruction is not of comparable substance.

Id. at 932.

Was relevant evidence hidden or destroyed?

            The killing of a defense witness and destroyed or hidden evidence of the scene of the killing of LaVoy Finicum are possibly both material and favorable. Witnesses could be called from the government and potentially other witnesses to establish a factual record regarding the benefit of this evidence.  The defendants’ expert in Cooper testified that if the defendants’ description of the reaction vessel were accurate, it could not manufacture methamphetamine. Id. at 932. But he also testified that to make a firm determination about the reaction vessel’s capabilities, he would need to examine the evidence. Id. 

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B.     United States v. Bohl

While Cooper did not address the issue of bad faith, the United States v. Bohl, 25 F3d 904 (10th Cir 1994), court did make a determination on the facts regarding the bad faith of the government actors. In Bohl, the defendants were charged with conspiracy to defraud the United States when the composition of three radio transmission towers constructed for the Federal Aviation Administration (“FAA”) failed to conform to the required specifications. Id. at 907. Defendants requested access to the towers to conduct an inspection of the steel in advance of indictment. Id. The government’s investigator also requested that FAA preserve the towers for the government’s case. Id. at 908. After indictment, defendants requested access to the towers. Id.  The government responded with assurances that it would provide the present condition and location of the towers. Id. However, the only actual tower material the government ever provided to defendants was an 18-inch portion from one of the towers and some shavings from the other towers. Id.
Defendants filed a pretrial motion to dismiss due to the government’s destruction of essential evidence, arguing that the scant evidence precluded them from conducting their own tests on the towers’ chemical composition. Id. At the hearing, the government conceded that it failed to respond to requests for information and that the towers could not be located. Id. It also asserted that defendants had access to photographs of the towers, small samples and the government’s test results, and thus had access to comparable evidence. Id. The district court denied the motion to dismiss. Id. The motion was renewed at trial on the grounds that the government’s destruction of the towers deprived them of the opportunity to conduct their own examination. Id. at 908-909. It was again denied. Id. at 909. The motion was renewed again at trial, and it was again denied on the grounds that there was no evidence that there was any intent on the part of the government to cause the destruction of the towers. Id.
The Bohl court began its due process analysis with a discussion of the starting point—Trombetta or Youngblood. Id. at 910. The Bohl court determined that tower legs offered only potentially useful evidence for the defense, and applied the rule set forth in Youngblood. Id. In making that determination, the Bohl court emphasized that the defendants conceded that the exculpatory value of the legs lay only in the potential results that might be obtained from further tests, tests that they could not perform because the towers were destroyed. Id. at 910. The court stated, “Hence, the exculpatory value was latent, rather than patent, and it was not apparent at the time of the destruction of the legs what further tests of the legs would reveal.” Id.
In its determination that the government acted in bad faith, the Bohl court emphasized that the government had been put on notice that defendants thought the evidence was exculpatory, defendant’s assertions that the tower legs possessed potentially exculpatory value was backed up with objective, independent evidence, the government still had possession or control over the evidence at the time it received notice from defendants about the potential value of the evidence, the evidence disposed of was central to the government’s case and the government offered no innocent explanation for the failure to preserve the evidence which formed the core of its criminal charges against defendant. Id. at 911-912.
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The Bohl court also acknowledged that the government does not necessarily engage in bad faith conduct when the destruction of evidence results from a standard procedure employment by the governmental agency regarding the disposal of like evidence, such as destruction of marijuana plants seized due to lack of storage capacity. Id. at 912-913. It also acknowledged and found it significant that, even though defendants had the burden to prove bad faith of the government, the government offered no reasonable rationale or good faith explanation for the destruction of the evidence. Id.

Is hiding bullet casings in bad faith?

Here, there can be no standard procedure to kill a man and then hide bullet casings and lie to investigators afterwards.  There can be no other inference from hiding evidence than bad faith.  The FBI didn’t want the sun to shine in on their investigation, because it threatened their control of the narrative that these protesters were violent men that deserved to be shot at and killed.  So, they tried to make the evidence fit their predetermined facts—that LaVoy Finicum deserved to be shot, so it was okay to shoot him.  Unfortunately, that couldn’t be further from the truth.  The Court should be staked with determining if the evidence destroyed in this case was exculpatory and destroyed in bad faith.  The government has no reasonable rational or good faith basis for destroying bullets after shooting a political protester.  As in Bohl, the court could find any assertion of good faith to be incredulous, and grant sanction the Government with a dismissal or limitation on evidence.   

"The FBI didn’t want the sun to shine in on their investigation, because it threatened their control of the narrative that these protesters were violent men that deserved to be shot at and killed."

C.    United States v. Elliott

            The opinion in United States v. Elliott, 83 F Supp 2d 637 (E D Va 1999), is a logical, well-written example of how a Court could approach the analysis of the issue of destroyed evidence in this context. It contains a helpful summary of the controlling legal principles when a defendant moves to dismiss an indictment based upon the destruction of evidence. Id. at 642-643. However, instead of choosing to hoe the row of Youngblood or Trombetta, the court acknowledged that either Youngblood or Trombetta could apply, and began with the exculpatory value of the destroyed evidence. Id. at 643. As the State notes, the Elliott court did take into consideration the government’s compliance (or lack thereof) with established procedures for preserving evidence. Id. at 646-648. However, in making the bad faith determination, the Elliott court also addressed the agent’s statements to defendant (as proof of bad faith) and the agent’s belief that he was authorized to destroy the evidence. Id. at 644-645, 648. The court concluded that defendant’s due process rights had been violated, but found that the facts of the case did not support dismissal. Id. at 649.

D.    United States v. Zaragoza-Moreira

The most recent pre-conviction Ninth Circuit case addressing the question of the government’s bad faith in the context of an alleged violation of a defendant’s due process rights when the government failed to preserve evidence is United States v. Zaragoza-Moreira, 780 F3d 971 (9th Cir 3-18-2015). The defendant, charged with importing heroin and methamphetamine, appealed the district court’s denial of her motion to dismiss based upon the government’s destruction of evidence that might have supported her claim for duress. Id. at 973. The defendant’s statements at the border were video recorded, but destroyed when it was automatically recorded over within 30-45 days of the arrest. Id. at 976-977. The government asserted that the loss of the video was an “oversight.” Id. The Ninth Circuit did not agree, because the agent who failed to preserve the video recognized the importance of the defendant’s statements in the video, admitted she had a professional obligation to collect and preserve inculpatory as well as exculpatory evidence, and she admitted that she understood that a defendant who is threatened with a crime has a possible defense to that crime. Id. at 980. The court determined that when Agent Alvarado knew of the potential usefulness of the video footage and acted in bad faith by failing to preserve it, Zaragoza's due process rights were violated. Id. at 982.
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IV.       Dismissal of the Indictment is one possible remedy. 

            The Trombetta court confirmed the remedies that are available when a due process violation involving destruction of evidence has been found:
Whenever potentially exculpatory evidence is permanently lost, courts face the treacherous task of divining the import of materials whose contents are unknown and, very often, disputed. Cf. United States v. Valenzuala-Berna, supra, at 870. Moreover, fashioning remedies for the illegal destruction of evidence can pose troubling choices. In nondisclosure cases, a court can grant the defendant a new trial at which the previously suppressed evidence may be introduced. But when the evidence has been destroyed in violation of the Constitution, the court must choose between barring further prosecution or suppressing…the State’s most probative evidence.
California v. Trombetta, 467 US at 486-487. The Bohl court noted:
Unlike cases in which the prosecutor fails to disclose Brady material, where a court may order a new trial at which the undisclosed evidence can be introduced, the disposition of evidence that is central to the case may permanently deprive the defendant of due process. Accordingly, after concluding that there has been a violation of Youngblood, the decision to either suppress the government’s secondary evidence describing the destroyed material or to dismiss the indictment turns on the prejudice that results to the defendant at trial. Such factors as the centrality of the evidence at trial, the reliability of the secondary evidence, and the effect such destruction had on the defendant’s ability to present a defense, must be considered in the calculus.

United States v. Bohl, 25 F3d at 914.[3] See also United States v. Bagley, 473 US 667, 687 (1985) (when the government violates a defendant’s due process rights under Brady, a court must determine whether the suppressed evidence would “undermine confidence [ ] in the outcome of the trial”).
            The Bohl court ultimately concluded that the appropriate remedy when the government destroyed evidence was dismissal:
Inasmuch as the chemical composition of the steel in TSL’s towers was critical to the government’s case, Bell and Bohl offered credible evidence both that their owns tests might have produced exculpatory evidence and that the government’s testing methodology was flawed, and the government does not suggest an alternative to protect Bell and Bohl’s due process rights, we have no choice but to remand with instructions to dismiss the indictment.
Bohl at 914. The Cooper court also ultimately concluded that the appropriate remedy was dismissal, as a proposed stipulation by the government was an inadequate substitute for the lost evidence. United States v. Cooper, 983 F2d at 933. The court also concluded that suppression of the government’s evidence was inadequate; it noted, “[Defendants] should not be made to suffer because government agents…in bad faith, allowed its proof, or its disproof, to be buried in a toxic waste dump.” Id.

Can anything be done to right this perceived wrong?

In the Malheur protest case, a dismissal of the Indictment may be the only way to practically or adequately remedy the violations committed by the Government. The evidence lost from the scene is irreplaceable and taints the reliability of the entire investigation that is not remedied by merely being pointed out to a jury, which the court has ruled cannot even be done.
Exclusion of the State’s evidence is not an adequate remedy. In the alternative to dismissal, a defendant could request exclusion of all post-shooting evidence to level the playing field and address this egregious due process violation.  Unfortunately, because the government has selectively released information to the public while attempting to use the Court’s power for a protective order to gag the defendants, they selectively released a video with their chosen narrative.  They did so while knowing that they were releasing information about an FBI cover-up, but chose, suspiciously, to not include that in their explanation, which was a thinly veiled attempt to vilify Mr. Finicum, the very man they killed.

By Mike Arnold, 8/30/2016
Author of forthcoming book Finishing Machine

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Friday, August 19, 2016

Adverse Possession is Available Against Department of Interior in Limited Circumstances

Remember when Judge Jones said to the Bundys that adverse possession wasn't available against the federal government? Well, that was plain wrong. It was explained in an earlier pleading, but this is an example of how the government is way better at controlling the narrative against a minority cause/opinion.

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What the judge missed was that adverse possession is available in very limited circumstances against the Department of Interior (USFWS, BLM, etc.). There are two ways to prove per
Ammon Bundy at Refuge
federal statute. One requires a time machine to 1910 ("class 2" per the CFRs), the other ("class 1") requires "good faith and in peaceful, adverse, possession...under claim or color of title for more than twenty years, and that valuable improvements have been placed on such land or some part thereof has been reduced to cultivation."

Recall when they claimed on video that they intended to stay for years, made improvements and then had recorded lectures on adverse possession law? This is relevant to intent.  While the potential success of the argument will be debated, the jury is entitled to hear about it to determine state of mind. Judge Brown keeping it out would be a costly mistake and possibly lead to a retrial. In a case of this magnitude she should be erring on the side of protecting the defendants’ record.  

As the AUSA admitted, this is the most complicated case in history of the Oregon district. Her attempts to simplify it are shortsighted.  It’s a good tactic to harm the defense, a bad tactic for a long-term strategy of achieving a non-appealable conviction. But as Sun Tzu says: “Strategy without tactics is the slowest route to victory. Tactics without strategy is the noise before defeat.”  (Pocket Art of War on Amazon: http://bit.ly/2brAwKP). And it's getting pretty noisy up in here. 


There has been a lot of confusion about adverse possession, since it’s not available against the government unless the government expressly permits it -- hence the federal statute. The statute was intended to protect those homesteaders who fenced in or were otherwise using/improving Interior land without express permission. However, it’s still on the books and hasn’t been updated since the early part of last century and is still available for use by citizens. 

The Fogbow Forum
One of the Fogbow contributors candidly retracted his previous misstatements about the availability of the statute had this to say about it the statute:

“The statute in question is old, but still on the books. Whether or not the statute actually establishes a right to adverse possession, or if it's a waiver of sovereign immunity that covers limited circumstances, or if it just establishes something akin to adverse possession is more a matter of semantics than anything else. For all intents and purposes, the effect is the same. 

“That said, since the statute requires good faith, a legitimate claim to land, or occupation under color of title, I'd say that it's unlikely that there are more than a handful of potential cases left where anyone is likely to successfully claim land under this statute. I'm also not sure that the statute is applicable to Malheur even in principle - but I'll check that a bit later.
“It's a poorly-punctuated statute, but after re-reading it both in the US Code and in the two relevant statutes-at-large volumes, I have to agree that your interpretation is probably right, and mine probably wrong. The 1901 probably does only apply to the situation in (b) where there are no improvements or cultivation. So while there are many, many reasons that no adverse possession claim to the refuge would succeed, particularly under the circumstances of the occupation, failure to use a time machine is not one of them.


You see folks, this is what civil discourse is about.  Instead of calling dissenters names, try engaging them or else you are the “sheeple” following each other into irrelevance.  You should be way more than 3% in the modern social media world. Remember, you aren’t trying to change each other’s minds when arguing. You are trying to impress the silent majority of onlookers whose minds can be changed.  For every commenter or “like” we get thousands of other views of posts and comments. 

Here's what was argued in a motion in May (PDF): 
“Ammon Bundy’s peaceful protest at the Malheur Wildlife Refuge was an act of civil disobedience and a calculated legal maneuver through adverse possession (43 U.S. Code § 1068 "Lands held in adverse possession”). The protest was in part designed to force the federal government into court to address the constitutionality of its federal land management policy. *** However, instead of arguing the issue in a civil courtroom through an ejectment proceeding – where such a debate belongs – Mr. Bundy finds himself before a federal criminal court as a prisoner. Ammon and the Citizens for Constitutional Freedom may not have prevailed in their adverse possession claim. But, that was for a civil court to decide. If the government would have acted with a remote degree of competence, it would have challenged the adverse possession, with an ejectment or eviction claim….”

Mike Arnold,

Friday, August 12, 2016

Debunking the Sovereign Citizen Movement - Oaths of Judges

Another day, another oath challenge.

I do enjoy using the Socratic method on the very creative and industrious sovereign citizen activists, although I have grown a bit tired of it of late. Many have been very patient with me, given my typical regression into snark due to frustration.  But, let's talk about the soundness of these very interesting legal tactics and how they fit into an overall legal strategy, assuming the strategic goal is to get a dismissal or acquittal rather than just doing something for the sake of protest.

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As related to the Malheur protesters' case there have been some relentless challenges to the oath of Judge Anna Brown.

Judicial Investitures: Kind of a big deal

Did you know that all attorneys in Oregon swear to support the constitution of the United States? The swearing in ceremony is kind of a big deal. I got chills when saying that part of mine even though there were hundreds doing the same thing. Of course the swearing in ceremony (investiture) of a judge is even a bigger deal with lots of pomp and speeches. It's not something you ever forget. Attorneys and family and friends go to watch the judge take her oath, so there are dozens if not hundreds of witnesses. If it was done in the age of the iPhone there are probably a ton of videos. 

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Here's the evidence of the oath: (1) The judge said in court that she took an oath. (2) Here's a copy of her oath
Judge Brown's Oath

Seems to be compelling evidence of an oath with no evidence to the contrary. What would be the evidence to the contrary? And what more would you need to prove an oath? 

Of course you could claim that there is no proof that Judge Hogan, the oath giver, ever took an oath. But isn't that kind an affront to the constitution that so many Americans have fight and died for? I mean, doesn't that argument make being a judge sound contagious, like a virus? Certainly the founders had a better plan with a nomination and then advice and consent of the Senate than lawsuits and motions challenging oaths.  If you have a problem with a judge, read the constitution (Hint: 
Article III, § 1, specifically provides judges with “good behavior” tenure and Artitcle II, § 4 allows for impeachment of "civil officers.")

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Notwithstanding the proof of an oath, assuming there wasn't one, what is the ultimate goal of the legal strategy? What do you think happens? Is it to allow a defendant to feel better if they lose so they can walk around the prison yard and discuss how unjust and illegal the court was? Or is there some practical, hidden value? 

If so, then there must be an example of it working. What are the odds of it working? 1 in 4? 1 in a million? Surely in a country this big and an idea so certain to win, there must be a large data set. Show me your “n.” And if there are no examples of success, why use it in a case that has constitutional and factual defenses? Is it just to irritate and make a political statement? 

Challenging oaths is a violation of the sovcit Common Law Super Defense

Here's the irony of the sovcit oaths argument: For a sovereign citizen who honors the common law to challenge a judge's oath of office years after an appointment is actually a violation of common law. 

Yes! It's true! Think about it: sitting on the bench for years without an oath and without being challenged or removed is akin to adversely possessing the bench and adverse possession is an equitable concept of the common law. 

Second, the sovereign citizens, under their own faithful clinging to common law principles, would actually be estopped from challenging the propriety of said oath after so many years. In other words, it's inequitable to challenge a judge's oath years after it was made because witnesses die, videos get recorded over, etc. (equitable estoppel is like a statute of limitations in a court of equity). 

So please walk me through why the common law isn't on Judge Brown's side in that scenario. And tell me why it's not a colossal waste of resources in a case with hundreds of witnesses to interview and exculpatory video evidence of a peaceful protest to review in order to actually demonstrate that the accused are actually not guilty! I mean, there are allegations of an actual FBI cover-up for gosh sake. Seems like resources could be out there prepping for trial.

So, seriously, enough with the oaths argument. And maritime law. And the fringe on the flag. This was a protest and the trial will be about the protest. And the jury will decide.

By Mike Arnold

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