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Malheur militants might receive only light sentences


The federal government’s charging decision in the case of the Malheur militants could mean some of them face as little as six months behind bars if convicted.

And to some lawyers, that seems surprisingly light.

The indictment unveiled last week named 16 people as having committed conspiracy to impede federal officials, based on the weeks-long armed occupation of the Malheur National Wildlife Refuge. That charge appears “highly winnable,” says Tung Yin, a criminal law professor at Lewis & Clark.

But it’s also just one of several statutes that could have been charged, lawyers say — many of them carrying stiffer sentences, such as a maximum of 25 years in prison, or worse.

Carrie Leonetti, a former federal public defender who teaches criminal and constitutional law at the University of Oregon, has reviewed how federal sentencing guidelines could be applied in the case, and says those defendants who have no criminal history may well face between six and 12 months behind bars. While the charge may well be appropriate, “it makes me sorry for other types of protesters that don’t get this break,” she says.

Other or additional charges may well be filed later on, Leonetti and other lawyers point out. The federal investigation is not over, and the occupation continues. Once law enforcement has taken control of the refuge, investigators are expected to collect evidence of destruction of federal property, as well as unlawful access to federal computers.

Still, it’s unclear whether those additional charges could be leveled at the occupation’s leaders, Ammon and Ryan Bundy. A recent OPB article suggested the two, after receiving legal advice, may have sought to avoid the worst of the charges, such as by instructing younger supporters to carry out the acts that could come with stiffer sentences.

Federal prosecutors declined to comment on the case, but in court have highlighted statements by the occupiers warning of bloodshed and argued the occupation created extreme danger for law enforcement as well as the occupiers themselves.

Several of the militants’ defense lawyers also declined to comment on the case, though in court they have defended their clients as engaged in free speech and civil disobedience.

Some lawyers, including former prosecutors, defend the current conspiracy charge as entirely appropriate. “What did they do? They dressed up like GI Joe and took over a bird sanctuary,” scoffed one, who spoke on condition of anonymity.

But some criminal defense lawyers who’ve faced off with federal prosecutors say the government’s approach to the armed occupation so far appears to be a marked change from how it often pursues other types of cases.

Leonetti cites, for example, the use of a federal “terrorism” statute to charge two Oakland animal rights activists who released minks from their cages and committed acts of vandalism. They face up to 10 years in prison.

A medical marijuana purveyor in California, Aaron Sandusky, is now serving a 10-year mandatory minimum sentence. Medical marijuana trafficking often is driven by “ideological underpinnings” and “strong feelings about interference in health care” by the federal government, Leonetti notes.

“It’s really hard to see the differential treatment. My personal sense is they may have made the right choice at Malheur. I just wish they made it everywhere else.” But, she added, “actually this thing turned really ugly at the end. I don’t know, maybe they’ve also undercharged in Malheur.”

Federal prosecutors sought to accuse an Ashland charity leader, Pete Seda, with supporting terrorism, a charge carrying an eight-year maximum. His alleged crime: sending money overseas that was used to support Chechen militants struggling against Russia. His subsequent 33-month conviction for tax fraud in 2010 was overturned on appeal.

Steve Wax, who headed the federal public defender’s office in Oregon, has represented a number of Muslims charged with terrorism offenses and funding terrorism, including Seda. He says he is not calling for stronger charges against the Malheur occupiers. That said, he says he is concerned over “the appearance of disparate treatment of people of different religions and races who use force in complaining about or trying to change government policy.”

Several lawyers interviewed for this article provided a range of statutes available to prosecutors.

One statute, carrying a 15-year maximum sentence, makes it a crime to provide support to anyone who commits another federal crime such as destroying or injuring federal property.

Then there is the issue of whether they could be charged with terrorism. A CNN national security analyst, Juliette Kayyem, former assistant secretary in the U.S. Department of Homeland Security, has opined that there is no question that the Malheur occupiers’ use of force, or the threat of force, in the pursuit of political change amounts to terrorism.

“They are dangerous, they are unforgiving, they are flouting federal law, they have a political purpose and they clearly are willing to use violence to get their way,” she wrote on Jan. 3. “Simply because they are not Muslim jihadists does not mean they are authorized to threaten or use violence to support their political cause.”

If charged with domestic terrorism, some of the occupiers could face a life sentence or even a sentence of death if prosecutors blame them for the Jan. 26 death of LaVoy Finicum, according to Leonetti’s read of federal statutes. “The occupiers could face up to 25 years in prison for their conduct and maybe even life or death, depending on whether a jury believed that a death ‘resulted to any person’ from their conduct,” she says.

“I do not personally believe that the government should always charge the most serious crime that it can in every case, but there is no question that there are applicable, more serious charges in this case that could be charged, if the prosecution chose to do so.”