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Judge rules Facebook evidence can be used in refuge takeover trial

TRIBUNE FILE PHOTO: ROB KERR - Ammon Bundy, center, faces trial beginning this week on charges surrounding the January takeover of the Malheur National Wildlife Refuge near Burns. A judge ruled Monday that Facebook posts could be used as evidence in the trial.U.S. District Court Judge Anna Brown ruled Monday that evidence from Facebook would be allowed in the trial for those accused of conspiring to occupy the Malheur National Wildlife Refuge.

The Sept. 12 decision is a blow for the defense, who argued the FBI and U.S. attorney’s office in Portland violated the terms outlined in the search warrant. The decision also comes as the trial for defendants accused in the refuge takeover begins Tuesday, Sept. 13, before a 12-person jury.

In a preliminary court filing, Brown was also quick to criticize the way government handled the evidence. Brown’s clerk wrote in a filing Monday that TRIBUNE ILLUSTRATION“… the court finds it necessary to ADMONISH the government for its lack of diligence in failing to ensure that non-responsive data from the seized Facebook accounts was sealed or destroyed in a timely manner following completion of the segregation of non responsive data pursuant to the terms of the search warrant.”

In other words, the government wasn’t as careful with the private Facebook account information as it had claimed.

During the pre-trial process, 11 of the defendants, but none who are going to trial this month, had their entire Facebook accounts submitted into discovery and shared with all defendants.

Following the disclosure, Judge Brown asked the government for a full account of how it handled evidence from Facebook.

During three separate court appearances, prosecutors from the U.S. Attorney’s Office in Portland attempted to explain how the account information became part of discovery in the case.

Despite claims from prosecutors in court, what emerged was a clear sense that the FBI did not seal the private Facebook account information.

“There is no evidence here that the government, either at the FBI or the U.S. Attorney’s Office, gave any level of respect to this process,” attorney Per Olson told Brown in court on Friday. Olson represents defendant David Fry, the last person to surrender in February.

Prosecutors going to trial said they did not see the private information.

Previously Brown ruled the Facebook data evidence could be used as evidence. But following the discovery, Brown reopened the question, asking the government for a full account of how it handled Facebook evidence.


Hear Conrad Wilson's reports on the federal trial on Oregon Public Broadcasting, www.opb.org/ ; 91.5 FM.