FBI authorized some informants to engage in unlawful activity at refuge
Over the objection of a prosecutor, a defense lawyer Wednesday asked Oregon's recently retired top FBI agent about his reaction to the jury verdict from the first trial in the occupation of the Malheur National Wildlife Refuge.
"You do not believe the participants that went to trial in the fall of 2016 were held accountable, that's correct?'' asked Michele Kohler, representing defendant Duane Ehmer.
After some hesitation and direction from the judge to answer the question, retired FBI Special Agent in Charge Greg Bretzing replied, "That's correct.''
Kohler pointed out that Bretzing didn't testify during last year's trial of the occupation leaders but is a government witness for this second Oregon standoff trial.
And she noted that the verdict last fall likely didn't correspond to the last of three goals that shaped Bretzing's response to the 41-day occupation: to hold those involved accountable.
"So that verdict thwarted the third purpose of your federal response?'' Kohler continued.
"No,'' Bretzing replied.
"Sir, it's your desire to hold someone accountable for what happened in 2016?'' Kohler asked.
"I can't answer that yes or no,'' Bretzing said.
As Kohler asked her question about the earlier verdict, U.S. Attorney Ethan Knight stood to object. "The court has ruled on it,'' Knight told U.S. District Judge Anna J. Brown.
Kohler countered that she asked her question to discern potential bias.
The judge overruled the objection and allowed the question.
But moments later, when the jury was permitted to take a brief break, Knight told the judge that he was concerned the defense had violated an agreement not to ask Bretzing about his reaction to the verdict.
There was no mention of what the verdict was, but jurors could easily figure it out from the line of questioning. Occupation leader Ammon Bundy and six co-defendants were acquitted in October of conspiracy and weapons charges after a five-week trial.
"We bring that to the court's attention,'' Knight said. "This is something the government is very concerned about in front of this jury in this trial.''
Brown said she was unaware of any agreement reached between lawyers involved in the case but told them: "We need to be able to count on each others' representations."
After court, Andrew Kohlmetz, standby attorney for defendant Jason Patrick, said he had told Knight ahead of time that he wouldn't cross-examine Bretzing about the first trial's verdict. Kohler said she was unaware of any agreement made.
The matter arose during Bretzing's second day on the witness stand. Four remaining defendants are charged with conspiring to impede federal employees from carrying out their work at the federal wildlife refuge through intimidation, threats or fear.
Defense lawyers, during cross-examination, elicited testimony from Bretzing that there were "maybe a couple of hundred'' FBI agents in Harney County during the course of the refuge takeover, plus dozens of state and local law enforcement officers.
Informants engaged in unlawful activity
While Bretzing was questioned further about the FBI's use of informants or if he gave any approval for them to engage in unlawful activity while at the refuge, he said he didn't have direct knowledge.
Bretzing said he would have been "briefed on the activities of informants,'' but wasn't familiar with them by name, other than that of informant Mark McConnell. He said he couldn't say whether or not an FBI informant had participated in guard duty or fortifying the refuge.
"I'm not familiar with each place the confidential human source may have been at,'' Bretzing said.
In contrast, FBI Special Agent Ronnie Walker, who was called by the government as a witness later in the day, was very clear. He testified that some informants were authorized to engage in "otherwise unlawful activity'' during the occupation.
Prosecutors have said there were nine informants sent into the refuge during the occupation.
Walker, the FBI's trial agent for the case, said informants' range of stays at the refuge ran from two hours to 23 days.
Fabio Minoggio, who was outed by the defense in the first Oregon standoff trial, was the last informant to leave the refuge on the night of Jan. 26, 2016, after the fatal police shooting of occupation spokesman Robert "LaVoy" Finicum on U.S. 395 between Burns and John Day.
Some informants, including Minoggio, were allowed to carry guns when they went to the refuge, Walker testified.
If one was asked by occupier Ryan Payne to do guard duty at the refuge, "I would encourage the informant to do so, simply to maintain credibility,'' Walker told jurors.
Under cross-examination by defense lawyer Jesse Merrithew, Walker confirmed that Payne asked an informant to lead one of the security teams of occupiers.
Walker said he didn't know if the informant directed others to do guard duty or take other security measures, but said it would be "fair to infer'' that the informant would delegate responsibilities to others.
Asked if he knew Minoggio was training those at the refuge in hand-to-hand combat, Walker responded, "Oh yes, of course."
Merrithew continued, asking Walker if he knew Minoggio trained people at the refuge in the use of weapons. "That's one way of putting it,'' Walker said.
During redirect, Assistant U.S. Attorney Geoffrey Barrow asked the FBI agent if any informant participated in the initial occupation of the federal refuge. Walker said no.
"Did any informant initiate the idea of security teams'' at the refuge, Barrow asked.
"No,'' Walker answered.
Why, Barrow asked, was informant Minoggio allowed to train people.
Walker said it was done "to make the place safer.''
Minoggio heard shooting by the boat launch and went to check it out, Walker said.
"He saw firearms behavior that was unsafe,'' Walker said, so Minoggio "interjected himself and asked them to stop.''
Walker said none of the informants left their firearms behind at the refuge when they left.
-- Maxine Bernstein