Defense Attorneys Argue Some Malheur Charges Unconstitutional

[struggle4progress]

by Conrad Wilson OPB
May 23, 2016 1:01 p.m.

U.S. District Court Judge Anna Brown heard arguments Monday morning that could lay the groundwork for the upcoming trial against 25 defendants who took over the Malheur National Wildlife Refuge.

Defense attorneys for the group argued that several of the counts against the occupiers should be thrown out ahead of the Sept. 7 trial.

Attorney Amy Baggio, who is representing Joseph O’Shaughnessy in the case, said the only charge levied against all of the occupiers — conspiracy to impede federal employees — is unconstitutional.

Baggio said the charge is too broad and allows the government to decide when a government employee is being impeded. She said the charge places a “sphere of protection” around government workers, which Baggio argued has the potential to create a chilling effect on political protests at government offices, thus violating the First Amendment rights of protesters ...

http://www.opb.org/news/series/burns-oregon-standoff-bundy-militia-news-updates/defense-malheur-refuge-occupation-charges-unconstitutional/

[struggle4progress]

1. Conspiracy charge can 'chill' political dissent, defense lawyer says

By Maxine Bernstein | The Oregonian/OregonLive
on May 23, 2016 at 12:56 PM, updated May 23, 2016 at 1:37 PM

... U.S. District Judge Anna J. Brown, who has set a Sept. 7 trial date in the refuge occupation case, countered that the statute "does not criminalize mere criticism'' or "mere protest.''

"It criminalizes force, intimidation or threats against public employees preventing them from doing their jobs,'' the judge said. Brown added that it's OK criticize U.S. Bureau of Land Management employees, but preventing those BLM officers from doing their work on their property isn't permitted under law.

What if a federal court employee on the fourth floor of the courthouse was intimidated by a protest outside the courthouse by NRA supporters all carrying firearms? Baggio asked. Would that make the protest a criminal act because it "intimidated'' a federal employee?

"It's not protected conduct to use force to prevent federal officers from their duties,'' the judge told Baggio. "Of course a person has First Amendment rights but there are limits. ... It's also not lawful to intimidate someone with a firearm or threaten someone with a firearm'' ...

http://www.oregonlive.com/portland/index.ssf/2016/05/federal_conspiracy_charge_agai.html

[longship]

2. Their defense loses yet again.

No surprise actually.

R&K

[gratuitous]

3. "Impede" might be a vague term

In fact, it might even be unconstitutionally vague, but the conduct alleged against the Bundy Gang isn't ambiguous in the least. If the government proves the elements of its case, it will be up to the Bundy Gang to try to argue that they didn't mean to "impede" federal employees by staging an armed takeover of a federal building and office. Good luck with that.

[dembotoz]

4. and all this time i thought fantasy fiction was a bad choice for a career

[jmowreader]

5. Okay, fine.

This is the definition of "racketeering activity" found in 18 USC 1961. It's quite long, so scroll down.

(1) “racketeering activity” means (A) any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled substance or listed chemical (as defined in section 102 of the Controlled Substances Act), which is chargeable under State law and punishable by imprisonment for more than one year; (B) any act which is indictable under any of the following provisions of title 18, United States Code: Section 201 (relating to bribery), section 224 (relating to sports bribery), sections 471, 472, and 473 (relating to counterfeiting), section 659 (relating to theft from interstate shipment) if the act indictable under section 659 is felonious, section 664 (relating to embezzlement from pension and welfare funds), sections 891–894 (relating to extortionate credit transactions), section 1028 (relating to fraud and related activity in connection with identification documents), section 1029 (relating to fraud and related activity in connection with access devices), section 1084 (relating to the transmission of gambling information), section 1341 (relating to mail fraud), section 1343 (relating to wire fraud), section 1344 (relating to financial institution fraud), section 1351 (relating to fraud in foreign labor contracting), section 1425 (relating to the procurement of citizenship or nationalization unlawfully), section 1426 (relating to the reproduction of naturalization or citizenship papers), section 1427 (relating to the sale of naturalization or citizenship papers), sections 1461–1465 (relating to obscene matter), section 1503 (relating to obstruction of justice), section 1510 (relating to obstruction of criminal investigations), section 1511 (relating to the obstruction of State or local law enforcement), section 1512 (relating to tampering with a witness, victim, or an informant), section 1513 (relating to retaliating against a witness, victim, or an informant), section 1542 (relating to false statement in application and use of passport), section 1543 (relating to forgery or false use of passport), section 1544 (relating to misuse of passport), section 1546 (relating to fraud and misuse of visas, permits, and other documents), sections 1581–1592 (relating to peonage, slavery, and trafficking in persons).,[1] section 1951 (relating to interference with commerce, robbery, or extortion), section 1952 (relating to racketeering), section 1953 (relating to interstate transportation of wagering paraphernalia), section 1954 (relating to unlawful welfare fund payments), section 1955 (relating to the prohibition of illegal gambling businesses), section 1956 (relating to the laundering of monetary instruments), section 1957 (relating to engaging in monetary transactions in property derived from specified unlawful activity), section 1958 (relating to use of interstate commerce facilities in the commission of murder-for-hire), section 1960 (relating to illegal money transmitters), sections 2251, 2251A, 2252, and 2260 (relating to sexual exploitation of children), sections 2312 and 2313 (relating to interstate transportation of stolen motor vehicles), sections 2314 and 2315 (relating to interstate transportation of stolen property), section 2318 (relating to trafficking in counterfeit labels for phonorecords, computer programs or computer program documentation or packaging and copies of motion pictures or other audiovisual works), section 2319 (relating to criminal infringement of a copyright), section 2319A (relating to unauthorized fixation of and trafficking in sound recordings and music videos of live musical performances), section 2320 (relating to trafficking in goods or services bearing counterfeit marks), section 2321 (relating to trafficking in certain motor vehicles or motor vehicle parts), sections 2341–2346 (relating to trafficking in contraband cigarettes), sections 2421–24 (relating to white slave traffic), sections 175–178 (relating to biological weapons), sections 229–229F (relating to chemical weapons), section 831 (relating to nuclear materials), (C) any act which is indictable under title 29, United States Code, section 186 (dealing with restrictions on payments and loans to labor organizations) or section 501(c) (relating to embezzlement from union funds), (D) any offense involving fraud connected with a case under title 11 (except a case under section 157 of this title), fraud in the sale of securities, or the felonious manufacture, importation, receiving, concealment, buying, selling, or otherwise dealing in a controlled substance or listed chemical (as defined in section 102 of the Controlled Substances Act), punishable under any law of the United States, (E) any act which is indictable under the Currency and Foreign Transactions Reporting Act, (F) any act which is indictable under the Immigration and Nationality Act, section 274 (relating to bringing in and harboring certain aliens), section 277 (relating to aiding or assisting certain aliens to enter the United States), or section 278 (relating to importation of alien for immoral purpose) if the act indictable under such section of such Act was committed for the purpose of financial gain, or (G) any act that is indictable under any provision listed in section 2332b(g)(5)(B);

A halfway creative prosecutor can wedge the Bunkerville Standoff into that definition. Drop the "conspiracy to impede federal employees" charge and hit these assholes with a RICO indictment.

[yellowcanine]

6. Yeah well, I doubt that shitting on native American artifacts is "speech"

[Kaleva]

7. Some patriots shed their blood to defend the Constitution.

These ones shed their shit.