USA V. EHMER, No. 17-30242 (9th Cir. 2023)
Annotate this Case
In this case, the United States Court of Appeals for the Ninth Circuit affirmed the convictions and sentences of four defendants who were involved in the January 2016 occupation of the Malheur National Wildlife Refuge in eastern Oregon. The defendants were charged with various offenses including conspiracy to impede officers of the United States, possession of firearms in a federal facility, and depredation of government property.
The defendants challenged their convictions on numerous grounds, such as errors in the jury selection process and an argument that the Sixth Amendment entitled them to a jury trial even if the misdemeanor offenses with which they were charged were properly classified as petty offenses. The Ninth Circuit rejected these arguments and also held that there was sufficient evidence to support various misdemeanor convictions. In addition, it upheld certain jury instructions by the district court and rejected challenges by the defendants to the sentencing process. The Ninth Circuit also addressed various orders of the district court precluding access to sealed materials, largely leaving its decisions in place.
Court Description: Criminal Law.
The panel affirmed four defendants’ convictions and sentences for various offenses arising from their participation in the January 2016 occupation of the Malheur National Wildlife Refuge in eastern Oregon, and remanded with respect to sealing and discovery issues.
The panel held the district court properly added to the formal record under Fed. R. App. P. 10(e)(2)(B) certain email exchanges between the district judge and all counsel concerning jury selection procedures.
Appellants contended that the district court erred in excusing individual jurors without soliciting or receiving any input from the parties or counsel concerning those individual decisions.
The panel agreed with the Government that pre- screening and excusing potential jurors “for hardship” is an administrative task that “cannot reasonably be considered a part of the criminal trial” and may therefore be conducted by court or its staff—even in person—without the participation of the parties or their lawyers. Accordingly, to the extent that Appellants challenge the district court’s sua sponte and ex parte excusal of jurors on hardship grounds, the panel rejected that contention.
The panel rejected as foreclosed by United States v. Bordallo, 857 F.2d 519 (9th Cir. 1988), the Government’s argument that exclusion of other jurors for cause likewise falls within the permissible scope of routine administrative pre-screening that can be undertaken by the court acting sua sponte and ex parte and without hearing at all from the parties or their counsel. The panel wrote that by making case-specific determinations of potential bias based on prospective jurors’ written comments about this specific case, the district court went well beyond the sort of administrative screening that may be conducted on an ex parte basis under United States v. Calaway, 524 F.2d 609 (9th Cir. 1975). The district court’s case-specific excusal of particular jurors for cause constituted a “critical stage” of the proceedings with respect to which, at the very least, Appellants had the right to counsel and the right to be heard. The panel wrote that nothing in the Jury Selection and Service Act or the District of Oregon’s Juror Management Plan authorized the district court’s actions here, much less confirms that they may be deemed to be purely administrative for constitutional purposes.
Because Appellants agreed to a procedure whereby the jurors would initially be screened based solely on their answers to a paper questionnaire, the panel rejected Appellants’ contention that the district court was required to receive the input of the parties and their counsel at an in- person hearing.
Appellants contended that even if an in-person hearing was not required, the district court’s sua sponte and ex parte for-cause excusals (1) amounted to a complete denial of the assistance of counsel at a critical stage of trial proceedings, requiring automatic reversal without any harmless error inquiry, under United States v. Cronic, 466 U.S. 648 (1984); and (2) deprived them of a sufficient opportunity to be heard in violation of their due process rights. The panel rejected these contentions. After undertaking a retrospective review of the juror questionnaires in this case in which defense counsel had the opportunity to review the complete paper record and to identify any jurors whose excusal was questionable, the panel concluded that there is no reasonable doubt that the identified jurors removed for cause were properly excluded. The panel wrote that the district court’s failure to consult with counsel or the parties in advance thus did not make any difference, and there was no prejudicial impingement on the right to counsel or on the due process right to be heard with respect to these strikes. Accordingly, there is no reversible error. The panel wrote that it should nonetheless be clear that the panel cannot and does not endorse what the district court did. To make case-specific excusals of prospective jurors for cause without having first obtained the input of parties and counsel is improper and unnecessarily risks injecting reversible error into the proceedings.
The panel held that binding precedent requires rejection of Appellants’ argument that the Sixth Amendment entitled them to a jury trial even if the charged misdemeanor offenses were properly classified as “petty” offenses. In this case in which (1) the charged offenses involve violations of regulations that Congress has made it a crime to disobey, (2) the parties disagreed as to which criminal statutes underlie the relevant regulations, and (3) the competing alternatives do not have the same maximum penalty, the panel concluded that both of the respective statutes cited by Appellants and the Government apply to the relevant regulations, and that, as a result, the Government had the prosecutorial discretion to invoke either statute in charging a violation of the regulations. Because the charging information here makes clear that the Government invoked a statute, § 4 of the Refuge Recreation Act, that defines only a petty offense, the panel concluded that Appellants had no right to a jury trial for these regulatory violations.
The panel held that there was sufficient evidence to support (1) Ryan’s misdemeanor conviction for knowingly trespassing on the Malheur National Wildlife Refuge; (2) Ryan’s and Ehmer’s misdemeanor convictions for knowingly using, without authorization, an excavator that was the property of the United States Government; and (3) Patrick’s misdemeanor conviction for knowingly entering and starting, without authorization, an all-terrain vehicle that was the property of the United States Government.
Concerning Patrick’s and Thorn’s convictions for conspiracy to impede an officer of the United States in violation of 18 U.S.C. § 372, the panel held (1) the district court did not err in declining to instruct the jury that the phrase “person . . . holding any office, trust, or place of confidence under the United States” refers only to “Officers of the United States” whose appointments are governed by the Constitution’s Appointments Clause; (2) the district court’s instructions correctly defined the scope of “threats” and “intimidation” required by § 372; and (3) none of the asserted evidentiary errors warrants reversal.
Concerning Ryan’s and Ehmer’s convictions for depredation of government property in violation of 18 U.S.C. § 1361, the panel held (1) the district court properly declined to instruct the jury as to self-defense; (2) the district court did not abuse its discretion in excluding as cumulative four of Ryan’s six proffered character witnesses; and (3) even if there was a technical violation of Ehmer’s rights under the Speedy Trial Act in the setting of the trial date for a depredation charge included in a freestanding separate indictment, Ehmer was not prejudiced.
Concerning Thorn’s sentence, the panel held that the district court properly applied the preponderance-of-the- evidence standard rather than the clear-and-convincing- evidence standard in determining whether to apply various enhancements in calculating Thorn’s sentencing range under the sentencing guidelines. The panel held that the district court did not err in applying a three-level enhancement under U.S.S.G. § 2A2.4(b)(1)(B) for threatened use of a firearm.
The panel rejected Thorn’s and Patrick’s challenges to an adjustment under application note 4 of U.S.S.G. § 3A1.4, which addresses terrorism-related offenses.
The panel held that the district court did not abuse its discretion in applying a two-level aggravating-role enhancement to Patrick under U.S.S.G. § 3B1.1(c).
Appellants challenged various orders by which the district court precluded access to certain sealed materials. They also renewed their motion in this court to unseal certain materials that were included in a volume of the Government’s supplemental excerpts of record that was filed ex parte and under seal. The panel held that the district court did not abuse its discretion in concluding that Thorn failed to justify a requested order allowing only his counsel to review a cooperation agreement between the Government and a non-testifying co-defendant. The panel also rejected Appellants’ contention that the district court improperly denied discovery of certain memoranda concerning information learned from Government informants. The panel concluded that, while a district court order that is contained in the Government’s supplemental excerpts of record should remain under seal at this time, that document should be disclosed to Appellants’ counsel under an appropriate protective order on remand. With respect to the other challenged items, the panel wrote that at this time they should remain under seal and should not be disclosed to Appellants or their counsel. The panel wrote that this ruling is without prejudice to reconsideration on remand in the district court after the disclosure of the sealed order.
Judge Berzon concurred in part and concurred in the judgment in part. She agreed with the majority opinion in full except for the part addressing defendants’ claims that the district court’s ex parte dismissal of 430 prospective jurors violated defendants’ rights to counsel and to presence. She wrote separately principally to clarify the parameters of the right-to-counsel and right-to-presence claims. She also wrote that she agreed with the majority’s conclusion that automatic reversal is not required, but for reasons other than those relied upon by the majority. Because defendants do not allege that any empaneled juror (or jury venire) was not impartial, and do not contend that the district court’s excusals impermissibly skewed the jury venire or the empaneled jury, she concluded that the district court’s errors did not, beyond a reasonable doubt, affect the verdict.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.