What Happened In The Hammond Sentencing In Oregon? A Lawsplainer

Much ink has been spilled amount United States v. Hammond, the federal criminal prosecution cited by militia members as one of the motivations for taking over a federal facility in Oregon. The increased sentence imposed on the Hammonds has been cited as a sign of government abuse. But the sentencing itself is not remarkable.

In 2001 Steven and Dwight Hammond set a fire on their property that spread to public land. In August of 2006 they set a back burn near the boundary of their land to respond to a lightning-kindled fire; that fire burned a small amount of public land. The federal government charged the Hammonds with various crimes, including Title 18, United States Code, section 844(f)(1):

(f)
(1) Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other personal or real property in whole or in part owned or possessed by, or leased to, the United States, or any department or agency thereof, or any institution or organization receiving Federal financial assistance, shall be imprisoned for not less than 5 years and not more than 20 years, fined under this title, or both.

The Ninth Circuit summarized part of the trial evidence as follows:

Although the Hammonds claimed that the fire was designed to burn off invasive species on their property, a teenage relative of theirs testified that Steven had instructed him to drop lit matches on the ground so as to “light up the whole country on fire.” And the teenager did just that.

A jury convicted the Hammonds of the Section 844 charge, acquitted them on other charges, and failed to reach a verdict on additional charges. While the jury continued to deliberate on the remaining charges, the Hammonds and the government reached a deal: the Hammonds would not appeal the verdict and the government would recommend that the Hammonds could stay out on bail pending sentencing and that the government would recommend that their Section 844 sentences be served concurrently — that is, that though the Hammonds were convicted of multiple counts of Section 844, each carrying a mandatory minimum five-year sentence, the government would recommend that those five-year terms not "stack," but result in just one five-year sentence.

At sentencing, the United States District Judge on the case refused to impose the five-year mandatory-minimum sentences required by Section 844, ruling that to do so would violate the Eighth Amendment's prohibition on cruel and unusual punishment. The court instead imposed sentences of twelve months and a day on the father1 and three months on the son.

The government appealed the sentence, and the United States Court of Appeals for the Ninth Circuit reversed and sent the case back, instructing the trial court to impose the statutory mandatory minimum sentence. The Court found — rather convincingly, given the precedent — that a five-year sentence for arson does not violate the Eighth Amendment:

Given the seriousness of arson, a five-year sentence is not grossly disproportionate to the offense. The Supreme Court has upheld far tougher sentences for less serious or, at the very least, comparable offenses. See Lockyer v. Andrade,
538 U.S. 63 (2003) (upholding a sentence of fifty years to life under California’s three-strikes law for stealing nine
videotapes); Ewing v. California, 538 U.S. 11 (2003) (upholding a sentence of twenty-five years to life under California’s three-strikes law for the theft of three golf clubs); Hutto v. Davis, 454 U.S. 370 (1982) (per curiam) (upholding a forty-year sentence for possession of nine ounces of marijuana with the intent to distribute); Rummel v. Estelle, 445 U.S. 263 (1980) (upholding a life sentence under Texas’s recidivist statute for obtaining $120.75 by false pretenses). And we and other courts have done the same. See, e.g., United States v. Tolliver, 730 F.3d 1216, 1230–32 (10th Cir. 2013) (upholding a 430-month sentence for using arson in the commission of a felony); United States v. Major, 676 F.3d 803, 812 (9th Cir. 2012) (upholding a 750-year sentence for offenses under 18 U.S.C. § 924(c)), cert. denied, 133 S. Ct. 280; United States v. Meiners, 485 F.3d 1211, 1212–13 (9th Cir. 2007) (per curiam) (upholding a fifteen-year sentence for advertising child pornography); United States v. Uphoff, 232 F.3d 624, 625–26 (8th Cir. 2000) (upholding a five-year sentence for arson of a building).

So the district court resentenced the Hammonds. The government asked for the five-year mandatory minimum but kept its deal to recommend concurrent sentences (rather than stacking two counts of Section 844 to form a ten-year sentence), and the court agreed and imposed that sentence. The Hammonds will necessarily serve 85% of that sentence, less the time they've already served.

Was the five-year sentence cruel and unusual?

It's arguable whether the five-year sentence is colloquially cruel and unusual, or whether the law should treat it as a violation of the Eighth Amendment. But there's no serious argument that the sentence is cruel and unusual under existing Eighth Amendment precedent. The Supreme Court and lower courts have upheld far harsher sentences for far less serious conduct. The Eighth Amendment still has vigor when applied to the death penalty and some conditions of imprisonment, but under modern jurisprudence it does not place any significant limit on the length of imprisonment that may be imposed for convictions. That may not be what the law should be, but it's what the law is, and has been for some time.

Was the mandatory minimum sentence unusual, or unusually imposed?

The Hammond case provided a straightforward application of a statutory mandatory minimum sentence. If you accept the premise of the jury's verdict — that the jury found that the Hammonds maliciously burned government land — then the case does not stand out. Longer mandatory minimums are routinely imposed for less culpable conduct. That doesn't make it right; it just makes it banal.

Was it unusual for the government to appeal the sentence, or for the Hammonds to be returned to jail after serving the original sentence?

Absent a waiver, both the government and the defense have the right to appeal a sentence. Federal prosecutors generally must seek approval from "main Justice" — the Department of Justice in Washington D.C. — before appealing a ruling. That's so the feds don't make what they see as "bad law" by appealing "bad cases," and so the feds' legal stance remains relatively consistent across circuits.

Back in the 1980s and 1990s, before the Supreme Court ruled that the United States Sentencing Guidelines must be treated as recommendations and not as mandates, the government routinely appealed sentences when they concluded that the judge had mis-applied the Guidelines in the defendant's favor. Now that the appellate standard is "reasonableness" of the sentence, the government appeals on that basis less often, but still does so. The United States has always routinely appealed sentences when a district judge has refused to impose a mandatory minimum sentence. Traditionally the Department of Justice has jealously guarded the mandatory nature of mandatory minimum sentences, appealing judicial defiance of them even in otherwise unappealing cases.

It's therefore not unusual at all that the government appealed the Hammonds' sentence.

Nor is the Hammonds' return to prison unprecedented. If the trial court imposes a short sentence and the appellate court overturns that ruling and requires a longer sentence, that's the result. The alternative would be that trial judges could avoid appellate review of sentences by making them short enough that defendants would be done with them by the time the appellate court could review them. That might be appealing to defense lawyers, defendants, and judges who believe in the primacy of trial court discretion, but it's not the law.

The U.S. v. Hammond appeal, reversal, and resentencing are not remarkable in the context of federal criminal law. Maybe they should be, but they aren't. Any suggestion that the proceedings represent a departure from the norm are incorrect.

That's not meant as an endorsement of the result. It's meant to question why this particular exercise of federal criminal authority strikes people as so outrageous, when in fact (as we often discuss here) it's routine.

  1. Federal inmates only get credit for good behavior if their sentence is at least a year and a day; thus adding a day onto a year sentence has the practical impact of shortening the time served by up to 15%.  

Last 5 posts by Ken White

Comments

  1. Ted H. says

    I think it strikes people as outrageous because the actus reus of the crime sweeps up what many consider benign activity–controlled burns to cultivate and protect private property. There aren't enough facts available to tell whether the defendants were engaging in totally righteous burns, except that at least one of them was not waived during a burn ban. It is sad that, as you note, seemingly unfair application of federal criminal law has become so banal.

  2. Brendan says

    The principle of charity might suggest that a significant portion of the public fundamentally know very little about the inner workings and practical functioning of the parts of the legal system which they rarely come into contact with. All the more intolerable features of the machine are seen by them with new eyes; it hadn't really occurred to them that THIS was how the sausage was made.

  3. Matthew Cline says

    Ken:

    1) How long do you think it will be before non-lawyers show up in this thread to tell you that you're wrong?

    2) How long will you argue with them before closing the thread out of frustration?

  4. Vince Clortho says

    Ken,

    In my experience (Arizona), the additional day also serves to move the defendant into federal prison rather than have their time served in county jail. Federal prison being perceived as more luxurious than Sheriff Arpaio's tent city, and all that.

    In your experience, is that also a reason for the extra day elsewhere?

  5. Ted H. says

    @Christopher Jorgensen

    Ever heard of over-inclusive laws, or even unjust laws? Whelp he got convicted, so therefore he was in the wrong.

    Furthermore, we don't have all the evidence presented at the trial, because to my knowledge those records aren't available. Probably would've helped a lot to be in that room. I'm not just as credulous of the dispensation of justice in our system as you apparently.

  6. orionATL says

    thank you. a straight forward, extremely helpful explanation.

    there is a question not of law but of motive that lingers in my mind:

    whether the u. s. attorney was motivated to file charges as a means of assisting the bureau of land management or fish and wildlife service in its lengthy struggle with the hammonds over adding their property to the malheur nature preserve. gauging this would depend on a lot of things, but the actual danger presented by and the actual amount of damage done by the fires would be important ones.

  7. Chris says

    Thanks for the write up, I had heard about the take-over but didn't have a clear understanding of the reasoning.

    3 things:

    1. The linked CNN article mentioned that the fire may have been to cover up poaching, since this isnt mentioned in your write-up do we have any idea what/ how valid their source is?

    2. 130 acres may be "a small amount of public land" but the clean up, especially in Burns' high desert sage brush, is messy and time consuming.

    3. This fire was 2006, so 5 years would have been 2011. Would anyone have cared if the sentence had been carried out correctly the first time?

  8. Chris Bray says

    One question that I haven't seen answered in any of the news coverage: Why were the Hammonds charged in 2011, and tried in 2012, for a fire they set in 2001? Why did it take federal prosecutors a full decade to ponder a fairly clear event, and to charge people whose identity and location were well known? I would ask a similar question for the 2006 fire. I have no experience with federal prosecutors (knock on wood), and so I have no idea about this — is it usual for people to have the possibility of federal charges dangling over them for years and years before they get to the denouement?

  9. PC says

    God forbid non-lawyers should have an opinion about the miserable state of our justice system, and of the routine practice of over-charging to force plea deals.

    Matthew Cline says

    January 4, 2016 at 10:04 am

    Ken:

    1) How long do you think it will be before non-lawyers show up in this thread to tell you that you're wrong?

    2) How long will you argue with them before closing the thread out of frustration?

  10. rpenner says

    @Chris

    Among the charges that the Hammonds were actually acquitted of were "obstruction of justice" which means that if they were alleged to have started the fire to conceal poaching according to an Officer Robb ( HammondGovBrief.pdf pp. 8-9 ) that was not proved (June 2012) and the Government does not rely on it.

  11. Mel Famie says

    The testimony from the teenager that you cite is interesting. Is there any indication that it was offered in exchange for the teen not being prosecuted or being offered a much reduced charge?

  12. says

    The post was explicitly aimed at the procedure by which the Hammonds were sentenced and re-sentenced based upon the jury's verdict and does not purport to comment on the evidence leading to conviction (other than a brief quote from the Ninth Circuit for context on why there were allegations of malice) nor on the circumstances of the investigation.

    If the Hammonds had challenged their conviction it would have been a very different analysis.

  13. John Thacker says

    It's meant to question why this particular exercise of federal criminal authority strikes people as so outrageous, when in fact (as we often discuss here) it's routine.

    To be sure, a sentiment that could be deployed with wearied cynicism to any one of the many outrages that become newsworthy, whether to Eric Garner's case, to the non-indictment of the killer of Tamir Rice out of all people killed by cops who got off, or to the clock kid out of all kids suspended by overeager administrators. I certainly understand the feeling of "why did this case go viral instead of this even more perfect example?" but at the same time it ends up sounding a bit ugly and churlish.

    In this case, the particular exercise of federal criminal authority acquired little attention outside of a small circle of neighbors in Oregon. However, it was the subsequent response by outside agents the Bundys (as different from the couple hundred local protestors) that seems to have acquired attention. This is, I think, in much the same way that many exercises of excessive federal criminal authority get little attention until "outside agitators" come in, at which point the national media focuses on whether the protestors have gone too far and will alienate middle America.

  14. bdunz says

    http://www.justice.gov/usao-or/pr/eastern-oregon-ranchers-convicted-arson-resentenced-five-years-prison

    "The jury convicted both of the Hammonds of using fire to destroy federal property for a 2001 arson known as the Hardie-Hammond Fire, located in the Steens Mountain Cooperative Management and Protection Area. Witnesses at trial, including a relative of the Hammonds, testified the arson occurred shortly after Steven Hammond and his hunting party illegally slaughtered several deer on BLM property. Jurors were told that Steven Hammond handed out “Strike Anywhere” matches with instructions that they be lit and dropped on the ground because they were going to “light up the whole country on fire.” One witness testified that he barely escaped the eight to ten foot high flames caused by the arson. The fire consumed 139 acres of public land and destroyed all evidence of the game violations. After committing the arson, Steven Hammond called the BLM office in Burns, Oregon and claimed the fire was started on Hammond property to burn off invasive species and had inadvertently burned onto public lands. Dwight and Steven Hammond told one of their relatives to keep his mouth shut and that nobody needed to know about the fire."

    It also appears this battle between the Hammonds and BLM has been going on since long before even 1994 – http://www.hcn.org/issues/20/582

  15. says

    I agree with Ted H. for the most part. In the abstract, five years seems a touch high for the type of arson at issue here, but it's not really outrageous, and that's not really what bothers people. The issue is more the possibility that it wasn't really arson. The surrounding context, where the Feds kept trying to get their land, and continually retaliated with their vast regulatory power because the Hammonds refused to sell, raises questions about the motivations behind the prosecution.

    Ultimately, though, they were convicted, and essentially pled to the charges while retaining limited appellate rights. It ends up seeming harsh, especially to the older man — but as Ken notes, these are hardly the only harsh sentences ever handed out in the history of criminal law.

    Also, for what it's worth, comparing this sentence to a bunch of other sentences (as the 9th Circuit did) doesn't convince me unless I know the records of the people in the other cases. Criminal records play a significant role in determining the length of a prison sentence, and rightfully so.

  16. says

    Also, although Ken says "the Hammonds were convicted of multiple counts of Section 844" I believe the dad was convicted of only one count. Also, the dad (Dwight) is the one who got the three-month sentence, and the son (Steven) got the sentence of twelve months and a day.

  17. En Passant says

    Ted H. says January 4, 2016 at 9:37 am:

    I think it strikes people as outrageous because the actus reus of the crime sweeps up what many consider benign activity–controlled burns to cultivate and protect private property.

    And that the mens rea, legal "malice", means essentially "with knowledge that the act is unlawful", instead of the meaning that most consider, "intent to do harm".

    Had the defense of necessity been generally available federally, as it is in many state courts and laws, they would likely have been acquitted. But there is no broadly recognized defense of necessity in federal law.

  18. Chris says

    @rpenner oh doy! Now that someone smarter (or at least with better reading comprehension) has pointed that out, its kinda obvious.

    Thank you very much!

  19. Mark Dougherty says

    Arson is a destructive act, done with malicious intent. Why apply this definition to a controlled burn, a standard land management practice?
    We can debate the Hammonds' judgment in setting the fires. But characterizing their actions as a generic case of arson is an injustice.
    The examples of the appeals court upholding "three strikes and you're out" sentences hardly provide solace or mitigation. How is most of our nation now viewing 25-year-sentences for petty theft or 40-year-terms for marijuana dealing? Much of the public concurs with Barack Obama's call for changes in sentencing philosophy and policy.
    Apparently, some extremists in government will not be deterred from meting out draconian punishment. The word terrorism is even floating around for the Hammonds' arson. Really?

  20. Bert says

    The Government fights the long fight. It knows in the end people will make mistakes, forget, give up, move, or just die. They have been taking this land for so long that only the most cantankerous hard head bastards are left. In all of this decades of fighting the best argument they had was burning some prairie. Burning 120 acres of ground is not destroying 120 acres its completely debatable if it even harmed the governments use of the ground. It would be like prosecuting somebody for causing a car accident that delayed a IRS from a flight and missing a day of work. Seriously that is the total damages we are talking about. Not counting direct costs of fire work if the BLM did the days worth of work making sure all the little fires were out. All total on the way outside 5,000 dollars of direct damage. Probably closer to $500.

    Then your talking to the possibly drug addicted, ax to grind, 13 year old memories of a 13 year old family outcast. Who could have remembered the phrasing wrong. He could have said burn it fast just keep dropping matches because the main fire is headed this way fast. Just like somebody who bumped a IRS agents car after finding out it was a IRS agent made a comment like "its ok we only hit a IRS agent so nothing bad happened"

    I used to say wait for the righteous victims of government abuse to fight. But the Gov plays the long game and runs off all the right victims until only hard heads are left. You have to push back and help all the victims or just let the Gov have enough rope to hang themselves.

  21. Turk says

    But why did you call this a "militia" in your opening sentence, as opposed to an armed gang of thugs?

    OK, perhaps that's an issue for a different post.

  22. Ryan Freire says

    There are several issues that I don't see covered often and may not be well known regarding this case but in the 2001 fire, members of their own family testified that the fires were set to cover up poaching on BLM land.

    For the second fire, during mid august there is a burn ban in that segment of the state because it gets so dry that fires spread out of control easily, as these did. On top of this the fire was set with no warning to the BLM and firefighters who were already in the area. It is incredibly dangerous for those firefighters to be suddenly confronted with fires they were unaware of.

    For perspective, in the grand scheme of things the amount of land outside their property burned was not particularly much taking the whole state into account, however if you picture land taking up approximately 150 football fields, its not insignificant either.

    As a native of the state their original sentencing kind of stinks of small town justice for a wealthy and established family more than viewing the law excessive.

  23. Echo says

    @Turk
    "If you don't use a dog-whistle that appeals to my ignorant mob, you're writing legal explanations wrong! Also ur totes racist probably"

  24. The_Jack says

    Why the outrage for this case? My guess is because people don't *know* this is routine. Ken White is a subject matter expert and one that writes on this issue frequently.

    So of course he *knows* it's frequent. But people who don't regularly write or read about federal sentencing guidelines might be /surprised/ at just how the sausage is made.

    It'd be akin to asking why one example of court diffidence to LEO strikes people as outrageous when such things are routine.

  25. Guy Who Looks Things Up says

    @Bert

    Seriously that is the total damages we are talking about. Not counting direct costs of fire work if the BLM did the days worth of work making sure all the little fires were out. All total on the way outside 5,000 dollars of direct damage. Probably closer to $500.

    Don't recall where I read it, but I've seen the cost of extinguishing the 2006 fire pegged at $600,000.

    @Patterico

    The surrounding context, where the Feds kept trying to get their land …

    Theirs by title or theirs by settling on a Paiute reservation and not being chased off?

  26. Igor says

    1) I don't trust the Feds as far as I can throw them. "Terrorism"? I don't think so.
    2) The word of a teenager, probably bullied by a Fed Persecutor hell-bent on a conviction? Don't trust the teenager, for sure.
    3) this sort of thing has been escalating for a long time, far longer than 2001. The ranchers were doing just fine, thank you, until the Envirowhackos got to mucking about and convinvcing the Feds that the land needed to be left alone.

    Messy. Add the Bundys into it and it can get out of control like a… brush fire.

  27. TG says

    It may be an obtuse question, but it's been years since I last touched a criminal case, and I'm probably not the only one to wonder:

    18 USC §844(f)(1) provides for a 5-year minimum or a fine. Does the application of 2K1.4 override the option of a fine? Or does the judge's decision to impose any term of incarceration mean that the term of incarceration must meet the 5-year minimum? Or is it something else altogether? Could the judge have imposed a fine in lieu of any sentence, despite the stipulated sentencing agreement?

    A quick glance at the USSG, the US v. Hammond case, and the Westlaw notes for §844 didn't turn up the answer.

  28. Matthew Cline says

    @PC:

    God forbid non-lawyers should have an opinion about the miserable state of our justice system, and of the routine practice of over-charging to force plea deals.

    Non-lawyers having opinions about the current law being bad is great. Non-lawyers having opinions about what the law is, and telling him he's wrong about what the law is, isn't so great. My comment was in reference to Ken's series of posts on the revocation of Nakoula Basseley Nakoula's probation (with regards to the whole "Innocence of Muslims). Ken said that there was nothing unusual about the revocation of his probation. While some commenters might have argued that the revocation of probation was unfair/unjust, there were also so many comments arguing that it was unusual/unconstitutional that Ken eventually closed the thread out of frustration.

  29. Bert says

    @Guy Who Looks Things Up

    Total costs of all fires in that area started by lightning. Only one acre of BLM land was burned maybe in 2006. Yes what they did was maybe dangerous, but it worked.

    One thanksgiving a guy was burning his trash in IA. The wind was moving 20 mph so he shouldn't have done it. Within a hour 20-30 farmers had put down their Thanksgiving dinners and loaded their disks on the tractors and were trying to get ahead of 200 acres of burning corn husks. It took 5 hours and probably a couple thousand gallons of fuel, not counting hundreds of people on thanksgiving. Just neighbors helping neighbors. BLM sounds like a asshole of a neighbor.

  30. Viking says

    Hi,

    if the Hammonds were arrested in 2006, and a state prosecutor declined to charge them, why is this not a double jeopardy violation?

    Given that the burnings happened in 2001 and 2006, how was this prosecution not violating the right to a speedy trial?

  31. Margery says

    @Guy

    "a Paiute reservation and not being chased off?"

    One which strangely never had any actual Paiute living on it…

  32. Jon H says

    " BLM sounds like a asshole of a neighbor."

    Er, no. The guy who sets a fire and burns the neighbor's land is the asshole. And BLM is the US taxpayer, and no, I'm not okay with cranky ranchers burning public property.

  33. Sami says

    Five years for arson seems to me like they're getting off extremely lightly. Even if they were attempting a controlled burn, a) that is not an operation to be undertaken by amateurs and b) lighting any fire at all during a fire ban should be sufficient evidence of malice.

    Wildfires risk the lives and property of everyone in range of the fire if it evades control, and the lives of firefighters called upon to contain it.

    The Eighth Amendment sadly prohibits a fairer punishment, like, say, burning at the stake. Anyone outraged that they're going back to jail, as opposed to being outraged that they're ever leaving it, possibly lacks a sufficient understanding of just how bad wildfires can be.

  34. Quite Possibly A Cat says

    So the law specifically required maliciousness? That's good to hear.

    Also I echo TG: Could the judge just have given them a fine instead? I would have been tempted to do that out of spite for appealing my ruling.

  35. naturalized says

    Informative as ever, @Ken, thanks!

    You've been careful to be dispassionate about the normative justifiability of the law in question, though, keeping the focus on the legal analysis. Might I push my luck and ask what you – and any other American lawyers here – think of the five-year mandatory minimum sentence?

    I might as well show my hand here – to this non-American baby lawyer, five years minimum is very, very harsh. Not the craziest ever, but there's a whole range of things you can do in my jurisdiction without attracting anywhere near that. And that's just taking the State's case at its highest, before even considering the version of events set out in Patterico's blog. The problem here strikes me as this technically fitting the definition of arson, but not being anywhere close to what the drafter had in his contemplation – i.e., an excellent case study in why mandatory minimums are generally a bad idea.

  36. rpenner says

    @TG — IANAL, but I think that if the judge reached the conclusion that the evidence of malice and/or points on the sentencing report suggested that the behavior required punishment harsher than a fine then the statutory minimum kicks in.

    I think the reasoning works like: they were told not to do it, they were told not to do it, they were told not to do it, and yet they did it twice within the statute of limitations. Therefore these are not reasonable people trespassing on the law despite good faith efforts not to. Therefore a sentence of a fine would just be another futile communication. Therefore jail, therefore five year minimum.

    But then I looked at the Government's Sentencing Memorandum (above) and found that

    But, because U.S.S.G. § 5G1.1(b) requires that the statutorily required mandatory minimum sentence be their advisory guideline sentence, the actual sentencing guideline range for Steven and Dwight Hammond is 60 months’ imprisonment.

    Further research suggests that the "or fined under this section or both" is just to allow organizations to be punished, with jail + fine being understood to be the post-1984 intent for individuals. USSG §5C1.2 specifically supports this reading of 18 USC 844(f)(1).

  37. Ron Bell says

    The Hammond's have served enough time. If you agree, please sign this petition to the President asking for a commute of the sentence for the remainder of the Appeals Court Sentence of both Dwight Lincoln Hammond Jr and Steven Dwight Hammond, of Harney County Oregon. https://t.co/l7lccHyWWU

  38. Dan Weber says

    I like what John Thacker says.

    It's right to be suspicious about people who seem to only start noticing government abuse when it's of people like them, but

    1. it's the way most people are hard-wired
    2. everyone has to start somewhere
    3. it leads to "you can't complain about anything unless you complain about everything"

    By nature I distrust populist movements, whether they are occupying a federal building or Zuccotti Park, since by default populist movements are stupid. But building a coalition often involves working with people that you are not perfectly aligned with. Moving forward means being able to swallow your pride a bit. It's better to succeed than to win.

  39. Arlene says

    It sounds like the federal government wants the ranchers' land in that part of Oregon. The feds tend to be bullies when they don't get their way. Some of the feds belong in prison.

  40. Rooks Turner says

    This notion that the Feds have been "taking" everyones land for years, and that the BLM is some shadow organization with secret actors planning the future take over of America, is ridiculous to me. Is there some vast conspiracy of the National Parks directors to take over America in concert with evil Obama? You know what happens when the Federal government doesn't protect National Parks or precious and finite nature reserves? You get fracking fields and gas well heads for as far as the eye can see because the private owners who held them, sold them to the natural gas giants. This notion that the government is going to take over is getting old. It almost makes me hope that a republican gets to the white house. Hopefully then I don't have to hear all this liberal bashing, we'll all be in prison camps, Obama is a muslim terrorist and everything is his fault, we have to take our country back, get rid of the Mexicans, traditional family values (god hates fags), we have to rebuild our military, nonsense! Actually no, I take that back, we don't need a war in Iran.

  41. Dan Weber says

    Are the occupiers really saying this all started under Obama, or is that just words being put in their mouths by people who don't like them?

    I haven't found a manifesto but the article here and everything else I've seen says this has been going back for decades.

  42. Tim says

    I'm echoing a comment above, but,

    …shall be imprisoned for not less than 5 years and not more than 20 years, fined under this title, or both.

    Does this indicate they could be fined OR imprisoned? Does the 5 year mandatory minimum kick in because the Judge handed down imprisonment and it was too short of a timeline? I'm just getting hung up on the language. PS. Oxford commas for life!

  43. says

    I don't have a problem with a 5-year sentence for arson at all.

    But my (not-a-lawyer) read on the original judge's verdict was that he took issue with the DoJ using the Antiterrorism and Effective Death Penalty Act of 1996 to prosecute. I don't see much reason to believe the Hammonds' arson was an act of terrorism, even with the "light up the whole country on fire" comment.

    (Now, what the Bundys and their militia buddies are doing right now, ostensibly in support of the Hammonds? That sounds an awful lot more like terrorism to me.)

    And I oppose mandatory minimum sentences on principle.

    As for what makes this remarkable? Not much. I suspect the Bundy family wanted to provoke another government standoff and decided this was as good an excuse as any.

    I think that mandatory minimums and the misuse of antiterrorism laws are issues that affect everyone, and there is good cause to protest them. I don't think the Hammond case is by any means the best example of their misuse (and the Hammonds are not very sympathetic spokesmen for the cause), but I can respect those who want to peacefully protest the decision.

    Breaking into a federal building, with guns, demanding that the federal government cede control of its land, and making comments implying you're prepared for a shootout with the authorities does not meet my definition of "peaceful protest".

  44. Brian Z says

    Ken,

    Thank you for refraining from supplying us with the Proper Context with which to understand recent events.

    The fact-to-"packaging" ratio is quite high. Excellent.

  45. TheLizard says

    I won't try to address all the ignorant statements by folks who don't understand ranching practices, or land management or controlled burns (which the BLM also practices on the land they "manage").

    But you should know that the BLM is very aggressive in acquiring land and tightening restrictions on land use for all but the large corporations (with plenty of money). And, yes, while there used to be lots of ranchers in the area where the Hammonds ranch, there are none left but the Hammonds, and the BLM is interested in acquiring that land.

    This doesn't require some "vast government conspiracy", just an executive directive. These directives come from the 1999 recommendations of the President's Council on Sustainable Development, established by Bill Clinton (an effort begun under H.W. Bush).

  46. Total says

    (which the BLM also practices on the land they "manage").

    Do they use them to cover up poaching, too?

  47. non-lawyer says

    Thank you for this, Ken White.

    I note that the judge who made the ruling on the reduced sentences spoke about it being his last sentencing after 39 years as a judge. He made some emotional statements and mentioned that his own family was in court for this important moment in his own career.

  48. Guy Who Looks Things Up says

    @TheLizard

    I guess I understand this much about "controlled burns," if you start a fire on your property and it goes somewhere it's not supposed to, then it's not controlled.

  49. Dan Weber says

    And in your experience as a rancher, what's the normal remedy?

    If the BLM does a controlled burn and it gets onto my land, who goes to jail for 5 years? (Ha ha ha!)

  50. cpast says

    @Viking:

    if the Hammonds were arrested in 2006, and a state prosecutor declined to charge them, why is this not a double jeopardy violation?

    Given that the burnings happened in 2001 and 2006, how was this prosecution not violating the right to a speedy trial?

    For the first one, there are two independent reasons. Double jeopardy means you're twice actually put in jeopardy; in this context, "put in jeopardy" means "brought to trial." If a prosecutor doesn't prosecute, there are no double jeopardy implications, because jeopardy doesn't attach until the actual trial is starting (the swearing in of the jury in a jury trial, or of the first witness in a bench trial). So, an arrest where charges are dropped before trial doesn't preclude any future prosecutions of anything.

    Second, there's an exception to double jeopardy for separate sovereigns. If someone is acquitted in a state court of the violation of state laws, it doesn't bar the federal government from prosecuting them for a violation of federal law (and vice versa). So, even if they *were* put in jeopardy by the state of Oregon, the feds could still prosecute. Federal policy is to generally not do that if someone is acquitted at the state level (which, again, the Hammonds weren't), but there's no constitutional bar to it.

    As to the second question, the constitutional right to a speedy trial is a right that only applies once you're accused. When the *crime* happened isn't particularly relevant to that; what matters is the accusation/arrest. The statute of limitations controls when the charges must be filed vs. when the crime happened, but that's an entirely separate thing.

  51. Brian Z says

    If you'll ignore the venue and the larger article, the Hammond case is summarized in a Slate article as such:

    In 2010, prosecutors indicted the two brothers on federal arson charges, and in 2012, they received a five-year sentence under the federal Antiterrorism and Effective Death Penalty Act of 1996. In appeal, lawyers for the Hammonds argued that the mandatory minimum for arson under the law was unconstitutional “cruel and unusual punishment,” and a trial court agreed, reducing the sentence. Last October, however, an appeals court struck the prior ruling and reimposed the mandatory sentence, with credit for time served. After spending months in prison, the Hammonds had to return to serve the rest of their sentences.

    @Ken White
    This does not seem to agree with your write-up. Are they flat-out wrong, or am I misreading their summary? I've bolded the seeming discrepancies. IANAL.

  52. Cynthia says

    Dan Weber and TheLizard — thanks for you posts here — I am rural, living in the middle of farmland right on the border of Oregon, Idaho, Washington — directly above Burns. What I have learned from all of the posts from people that are obviously residents of urban and suburban areas is that the way of life in our western lands is not understood by them because they do not experience it. In fact, I did not realize that the lack of understanding is as deep and wide as I now see it is. When I think of someone burning land to cover up poached deer, well, that doesn't even make sense to me. You might field dress in the field or leave the guts in the field but those remnants are gone overnight. Someone elsewhere said they had viciously cut off the heads of deer. I scratched my head, as I looked at the racks on my fireplace and the head of an elk and deer here. Then I realized nonhunters/nonrural people see through different lenses than we do who live rural. The BLM? Forest Service? Good grief. I remember hanging out with FS folks who were excited fire season was approaching because that is when it rains gold. Rains gold? That means their coffers will get filled with the gold from the feds for fighting and despite what you hear, there's plenty. Heck, my company was to get a wildland fire prevention PR contract and they "lost" the $200K somewhere in one of the offices. Go figure. It took months to figure out. My husband worked for Forest Service for sometime. He quit. He came home in disgust — at the manipulation of numbers to get dollars. Counts of wildlife done wrong. Claims of certain birds existing in an area that did not exist. And more… Some folks are probably learning for the first time that backfires and controlled fires are set (as they are set around me every year) for healthier land. And yep, there are still Indians here and cowboys and the majority of the land is federal, which means people need to be able to play well together, but they don't. The feds have the upper hand. I guess what is really needed is for people to realize that their free-range cattle that they prize in the store comes from, guess what, the free and open range. And those free-range cattle need to be moved to new pasture routinely as they graze from morning to night. Any rancher who wants to destroy the land is working against himself or herself. Maybe we need to bring more of the large city folks to outings on ranches so they really understand what life here is like. We all live in the United States but there are two worlds within these borders — rural here in the west is a far cry from life in the city.

  53. Piper says

    From Ken's writeup, they were convicted of Arson by a jury AND they agreed to that . This is not in question, but so many of the partisan posts above ignore it.

  54. says

    I still think it's important to understand that the dad was convicted of only one of the arson fires (not two as stated in the post), and that the judge wanted to sentence him to three months (the sentences for the dad and son are switched in the post, as I noted above). An elderly man with no record setting one fire with an arguable excuse, when the fire caused almost no damage, even if the jury says the damage to federal property was deliberate, ought not get five years in prison, when the judge who sat through the trial thought it was worth a sentence of 90 days.

  55. Troy says

    They're going to get 5 years for burning 128 (127 in the first fire, 1 in the second) acres of land. Despite performing routine controlled burns in the past and after that. After years of bullying from the BLM, on the word of a single witness about events that happened 13 years before the testimony. In the second fire they had two choices, hope the BLM funded firefighters would save their winter range and not have a mysterious coffee break or save it themselves. After the BLM barricaded public roads leading to their ranch, flooded out neighbors, and tried to fence off their water source I'm sure they'd depend on the BLM not stabbing them in the back. Wouldn't you?

    Burns is EMPTY. You don't need to cover up poaching. It would take a miracle to get found out if you dress and butcher the carcass yourself. And they were doing this on their own land, I'm sure the Hammonds would put everything they owned at risk because they thought the fire would be funny.

    And the prosecutor used the usual deal of throwing every charge they think might possibly stick and offering a exploitative plea bargain, which is disgusting as always. The feds got 6 days of trial, the defense got 1, and the jury was not composed of any rancher peers.

    The only way this makes sense is a BLM vendetta.

  56. naturalized says

    @Brian Z,

    Jebus. That Slate article is somehow even stupider than I expected. "In appeal… the trial court reduced the sentence." That's… that's not how… never mind.

    @Patterico,

    You're absolutely completely right. If President Obama can somehow grant clemency without seeming like he's caving in to the militiamen, he should.

  57. Narad says

    @Bert:

    Then your [sic] talking to [sic] the possibly drug addicted, ax to grind, 13 year old memories [sic] of a 13 year old [sic] family outcast.

    Oh, do tell where you came up with the boldfaced bit.

  58. Wyrm says

    I don't have a problem with the re-sentencing itself, assuming "mandatory minimum" and the idea that "if we didn't do things this way, a judge could just condemn someone to a very short sentence to avoid his decision being overruled.

    Now, there are two points that bother me:

    – in general, mandatory minimum are an aberration. They are written in the law, but that doesn't make the law right. Setting a maximum sentence for each crime is normal, but minimum are not since they prevent the judge from taking context to reduce the burden on someone. It's too much of a black and white concept in a world made of plenty more colors.

    – more annoying yet is the fact that the Supreme Court uses particularly extreme (and sometimes ridiculous) sentences to consider this particular sentence "not cruel and unusual". Granted, it's not unusual, but that doesn't make it right. Arguing extreme cases doesn't make things look any better. Quite the opposite. (50 years for stealing 9 videotapes? Is someone crazy? Worse yet: is THAT how SCOTUS wants us to think about "not cruel and unusual"?) No wonder some people went mad over this ruling. I don't approve either side of the story, but I understand how things turned bad.

  59. Narad says

    @Cynthia:

    I guess what is really needed is for people to realize that their free-range cattle that they prize in the store comes from, guess what, the free and open range. And those free-range cattle need to be moved to new pasture routinely as they graze from morning to night. 

    I've never seen high-priced beef advertised purely as "free range." What's commanding a high price is "grass fed" beef (sic – all beef cattle are "grass fed"; the label denotes "grass" finished).* What percentage of ranchers in your area would you estimate cater to this niche market, as opposed to those whose harvests just wind up in a feedlot being grain finished?

    * For certain values of "grass"; 72 Fed. Reg. 58,631 [PDF], 58,637 (2007):

    "Grass (Forage) Fed   Grass and forage shall be the feed source consumed for the lifetime of the ruminant animal, with the exception of milk consumed prior to weaning. The diet shall be derived solely from forage consisting of grass (annual and perennial), forbs (e.g., legumes, Brassica), browse, or cereal grain crops in the vegetative (pre-grain) state. Animals cannot be fed grain or grain byproducts and must have continuous access to pasture during the growing season. Hay, haylage, baleage, silage, crop residue without grain, and other roughage sources may also be included as acceptable feed sources. Routine mineral and vitamin supplementation may also be included in the feeding regimen. If incidental supplementation occurs due to inadvertent exposure to non-forage feedstuffs or to ensure the animal’s well being at all times during adverse environmental or physical conditions, the producer must fully document (e.g., receipts, ingredients, and tear tags) the supplementation that occurs including the amount, the frequency, and the supplements provided."

  60. Arlene says

    If you believe that the Hammonds served enough time, then please sign the petition to commute their sentences. Find link in comments section with the name of Ron Bell, January 5, 2016 at 6:42am.

  61. says

    I dug this, it was a fun read. I will now seek out the word "Lawsplainer" in article titles here on Popehat hoping for equally fun reads. I like that everything is linked as well. I can go down rabbit holes for days.

  62. Charles Roberts says

    Vince Clortho, the additional day of sentence moves the violation from misdemeanor to felony status.

    Federally, up to six months incarceration is a petty offense. Six to twelve months is a misdemeanor. Any sentence equal to or more than twelve months (a year) plus a day is a felony.

    As to where the sentence is served, federal use of county jails is restricted to those with contracts for initial holding of federal arrestees in locations where federal facilities are lacking. Federal arrestees are transferred to the custody of the US Marshals (regardless of arresting agency) and any sentences meted out are served in Bureau of Prisons facilities.

  63. rpenner says

    @Thad

    While traditionally prosecutors have discretion on which charges to pursue, I believe there is precedent where if they are going to charge someone with damaging US Government property by fire, they are required to use 18 USC 844(f) and not some other damaging US Government property charge.

  64. Rick says

    naturalized says …I can't agree with you more and really the minimum mandatory sentence here is at the heart of the overreaction and the occupation. It is also sour grapes in that many of those complaining now about its "harshness" most likely supported the mad rush in the 80's and 90's to "hold criminals accountable" by demanding tougher more uniform sentences at the State and Federal level — severely constraining judicial discretion based on the direct circumstances of each case.

    Quite frankly its also "an outrage" now because this is happening to middle class white folks and not just poor whites, blacks and latinos who've suffered dearly at the cruelty of minimum mandatory sentencing now for decades. None of those armed "occupiers" in Oregon gave a rats derrier when a 23 year old black male was sentenced to 5 years for selling 3 crack rocks while his white middle class counterpart got probation for selling full strength powdered cocaine up to 400 grams.

    Those charged in the Hammond family committed arson. While 5 years is too stiff in my opinion — 2-3 seems more reasonable given the circumstances — that's the law of the land that we as a society demanded, and unfortunately we're reaping what we sowed. Oh well, that's life and a good lesson in unintended consequences of very very bad legal policy.

  65. Josh says

    I know this has little to no bearing on the US situation.

    For those who think 5 years is steep for starting a fire i recommend have a look at what you could get should you do the same thing in Australia. The Crimes Act 1958 not only sets up a potential penalty of 15 years imprisonment, you are also potentially on the hook for paying for any damage caused by the fire (both to property and the environment) and for the cost of fighting it.

  66. jdgalt says

    The still-open question for me pertains to the defendants' deal with prosecutors. They agreed not to appeal the conviction in return for the prosecutors agreeing to concurrent sentences (and, it seems to me, effectively to the short sentence the judge gave). Now that that short sentence has been overturned, I think they ought to be allowed to appeal the conviction itself.

    I also believe both the 9th Circuit and SCOTUS grossly failed to do their job in not upholding the trial judge's 8th Amendment ruling. Existing 8th Amendment precedent is a cop-out and is responsible for most of prosecutors' huge, unwarranted power to force plea bargains.

    And the last sentence of this article especially irks me. The criminal "justice" system is chock full of things that happen routinely and yet are absolutely outrageous! Judges and even lawyers are much too willing to accept them, but we all need to stop doing so.

  67. Anyone home? says

    I am disappoint4ed you fail to mention the government wants their land and the fire they set was a back fire–hello?
    does Ken White still blog here?

  68. Tom Schiff says

    This is absolutely absurd. The Federal Arson terrorist law came after the Oklahoma bombing in 1996 and was never intended for burning 139 acres of scrubland- where nobody lives!! Have any of you driven thru there? A vertible moonscape – with tumbleweeds.

    FIVE YEARS IN A FED PEN FOR THAT?

    I think the Hammonds lawyers had to be very lame.

  69. TruthandFreedom says

    Does anyone find it not strange that the law being used against the Hammonds was signed into law by the same criminals trying to steal the ranchers lands? THE CLINTONS

    Instead of Using Oregon laws where the supposed crime took place, they instead used a TERRORIST LAW for action against the Hammonds! The difference being both have an extreme difference in both fines and length of sentencing requirements!

    Likewise, not once was the Jurors informed that the Hammonds were being prosecuted under TERRORIST LAWS!!! Nor, were they informed of their Rights of Nullification!!

    Then let us not also forget that 2 of the judges of 4 were also appointed by the Clintons! TOTAL CONFLICT OF INTEREST HERE!

    Meanwhile the Clinton's have profited over 31 million in stolen mineral rights from these ranchers lands that were stolen! There are even videos of these BLM agents admitting and laughing about how much land they have been able to steal from the ranchers and other private land owners!

    Last but not least, there were two witnesses (never allowed to testify) that saw the BLM start the fires, which forced the Hammonds to do the back burn. Which is further complicated by other ranchers and witnesses of the BLM starting numerous fires that have burned many private lands owned by the ranchers in which the judges refuse to let the ranchers go after the BLM for Arson (much less terrorist charges)!

  70. Tom Schiff says

    I totally agree – as a former Fed lawyer – that the Federal Arson statute passed in response to the 1998 Oklahoma Bombing – had no place for a small fire started in an area – way out in deslolate Harney county – the size of Maryland – with only some 7,000 residents. You could shoot a cannon all day long out there and never hit anyone – from one who grew up in Oregon and has driven the area. None of the Harney county residents were threatened by the 139 acres of BLM land that were accidentially burned. Actually – BLM backfires have gotten out of hand and burned hundreds of thousands of acres and threatened ranchers and their lives but not this little one. Not in any way. And the Federal Judge came up with a sentence everyone agreed to: 3 months for the older Hammond, a year for his son and a $400,000 fine (ridiculous – a $1 for every sagebrush burned) – yet the vindictive Government appealed in the Federal system – and a 5 year sentence was invoked – AFTER the Hammonds had already served their time. And yes, there are minerals out there in Harney County, Oregon. Read the book – "Clinton Cash" was it – for more info about "Billary" and their nefarious dealings with a Canadian Billionaire who sold the Uranium rights to a Russian company. Actually the Canadian Billionaire – Frank Guistra – was just amazed – saying something like: Bill is the best thing I have ever come across for getting deals done. And they did several HUGE deals together – flying around in Guistras' jet – not just selling US uranium rights to the Russians – ALL during the time Hillary was Secretary of State!!!

    FREE THE HAMMONDS!!!!!!

  71. Tom Schiff says

    The Dodo birds in the 9th circuit screw it up again. Actually – this charge should never have been allowed in the first place – as the Federal Arson Statute was passed in response to the horrendous 1998 Oklahoma City Bombing – never intended for a little brushfire on scrub-land that did not threaten any US citizens!!! Plus – Judge Hogan rammed this criminal case thru in a day – not allowing the Hammonds to call their witnesses – etc.

    From one who once practiced law for the FEDS!! :)

    FREE THE HAMMONDS

  72. Donald Barss says

    All anyone needs to know about this case is that the in the plea agreement reached, the BLM obtained first right of refusal if the Hammonds are forced to sell the ranch. It seems that with two of the Hammonds in jail there is a distinct possibility that this might happen. This is about the government trying to get this ranch because it borders the refuge and the BLM district manager is complicit in getting the sentences extended. If you are burning something on your land and the fire gets out of control you generally are required to pay for any damages and firefighting expense. You don't get charged with arson for Gods sake. Hard to believe burning up 130+ acres of sagebrush amounts to a 400, 000 fine and 5 years in prison. The EPA recently discharged a few million gallons of toxic waste into a river and I don't recall any punishment handed out for that. The reason for the delay in charging the Hammonds in my opinion is that BLM ran out of ideas in how to force them to sell. This was a golden opportunity and they took it.

  73. HIGH PLAINS says

    If one asks the question, "WHY did the BLM start a Land Consolidation Program in 2010?" {after hellacious clinton returned from China in 2009},
    for the states of Oregon, Nevada, Utah, Washington, and California,
    and follow the timeline of the Hammond's intensified persecution beginning in June of 2010, an enquiring mind might start to wonder…

    Were the Hammonds' targeted as a test case in Oregon ?

    The following timeline of events merging in 2010 (the indictment against the Hammond's was June 2010 ) gives one pause to wonder…

    Sources and links have been incorporated into the article: if the reader questions the source, an easy google search will verify other sources/links that report the same data.
    Here goes, it's long, but if you read it all, you might wonder….

    Were the Hammonds' targeted as a federal test case for BLM's 2010 Land Agenda?

    THE TRAIL OF COLLUSION AGAINST THE HAMMONDS

    In August of 1994, when BLM and FWS falsely arrested Dwight and Steve Hammond for protecting their legally owned water rights,

    Mr. Hammond did not counter sue for damages and false arrest. He went back to ranching

    Interim actions of BLM from 1994 to 2006 included arbitrary revocation of 3 (three) separate grazing rights held by Hammonds.
    http://tekgnosis.typepad.com/t

    In August of 2006 BLM Ranger Orr and FWS had Sheriff Dave Glerup arrest Dwight and Steve Hammond.
    The local county prosecutor reviewed all charges and declined to prosecute.
    District Attorney Tim Colahan dismissed all 2006 charges after reviewing them, and allowed the charges to move into statutory expiration.

    In June of 2010, acting preemptively before the statue of limitations expired from the 2006 dismissal by District Attorney Tim Colahan,
    BLM re-filed ,adding on an additional 17 counts.
    Indictment United States v. Hammond et al, No. 6:10-cr-60066-HO filed 2010-06-17 chief Judge Ann L. Aiken

    This is where one could say, after they knew Amanda Marshall was going to end up being their prosecuting attorney:

    After all, four (4) different US Attorney's for the state of Oregon in less than 16 months
    is nothing short of ludicrous. One could also say the three preceding US Oregon State Attorney's refused to prosecute
    the Hammonds', and that is why they didn't get to keep the position.

    [It is imperative to remember the Hammond's are the last private landholders in and around Mahler Refuge].

    Let's take a look at the timelines involved for Ms.(Sally) Amanda Marshall appearing on the scene in 2010.

    From October 2003 to July 2009, Karen Immergut was the U.S. Attorney for Oregon: she resigned

    From July 2009 to Feb.3, 2010, Kent Robinson was the interim U.S. Attorney for Oregon. After 7 short months, he was replaced.

    From Feb. 5, 2010 to ________, Dwight C, Holton was the interim U.S. Attorney for Oregon
    http://www.mainjustice.com/201

    Nov. 17, 2010 Obama nominates Amanda Marshall as U.S. Attorney for Oregon
    https://www.whitehouse.gov/the

    How did S. Amanda Marshall, a sub-par attorney in the child advocacy section, with no federal prosecution experience, get to U.S. Attorney for Oregon?

    The ten (10) candidates that applied for the position were:

    1. Dwight Holton – Oregon interim U.S. Attorney from Feb.5, 2010
    (until Amanda Marshall).
    Known for his tough prosecution of environmental crimes
    Endorsed by Oregon Sheriff's and Oregon's State Police Officer's Association. http://www.holtonfororegon.com

    2. Kent Robinson – Oregon interim U.S. Attorney from July 2009 to Feb.3, 2010. Thirty years experience in the Justice Dept.

    3. Josh Marquis – Clatsop County district attorney

    4. John Foote – Clackamas County district attorney

    5. Rob Bovett – Lincoln County district attorney

    6. John Haroldson – Benton County district attorney

    7. Ken Perry – Portland lawyer

    8. Robert Hutchings – Lane County public defender

    9. John Hummel – Portland lawyer

    10. Amanda Marshall – child advocate lawyer. Attended East China University of Politics and Law in Shanghai.
    http://www.mainjustice.com/tag

    By October 28, 2009, three applicants remained on the list: Josh Marquis, Kent Robinson, and Amanda Marshall.
    http://www.mainjustice.com/200

    Kent Robinson withdrew his application for unnamed reasons, and the final list submitted to the White House included only Josh Marquis and S. Amanda Marshall.

    Amanda Marshall…"may as well have had an inappropriate working relationship with Judge Aiken that should have potentially led to Judge Aiken to recuse herself from the Hammond re-sentencing.

    Prior to being nominated by President Barack Obama as U.S. District Attorney Amanda Marshall worked for the Oregon Department of Justice in Child Advocacy Services. Judge Aiken has been the presiding President of the Child Advocacy Services Board since 1998.

    Take into account that the only testimony used to establish “malicious intent” on part of the Hammonds derived from Dusty Hammond,
    Dwight Hammond’s grandson, a mentally incompetent 13 year old whose case has been overseen by Child Advocacy Services and
    the potential for wrongful collusion begins to crystallize.
    Initially in the trial Dusty Hammonds testimony was disqualified by Judge Mike Hogan due to his mental capacity.
    Despite this Dusty Hammonds testimony is assumed to have been used by Judge Aiken in determining malicious intent
    by the Hammonds to qualify them under the terrorism statute for re-sentencing."

    "This is not the first instance of Judge Aiken potentially failing to acknowledge inappropriate relationships when presiding over a case.

    In a 2013 complaint of Judicial Misconduct filed against Judge Aiken, a class action by Oregon lawyers against the Oregon State Bar,
    the Supreme Court of Oregon Chief Justice Thomas Balmer and Jeff Sapiro, it is alleged Aiken failed to disclose similar relationships.

    It is clear that Judge Aiken has a vested interest, politically, judicially and personally in the Malhuer Reserve and in all likely hood
    should have not presided over this appeal," considering her ties to the situation and the key individuals involved."
    https://shastalantern.net/2016

    BLM CHECKERBOARD LAND ACQUISITION PLAN

    2010 was also a pivotal year for the Bureau of Land Management (BLM). Congressman Rob Bishop (Utah) discovered their plans in missing pages not submitted to Congress. http://robbishop.house.gov/. Bishop is the chairman of the House Committee on Natural Resources.
    http://robbishop.house.gov/new
    ( Page 19 Attachment 6 Internal Draft NOT FOR RELEASE BLM LAND CONSOLIDATION OF ITS CHECKERBOARDED LANDS)
    Nevada, Oregon, Washington, Utah, California
    The fact that these missing pages of BLM's plans to consolidate all its' checkerboarded lands were not submitted for approval to Congress cannot help but lend credence to their illegal activities and collusion with local authorities to acquire Hammonds' ranch. Again: Hammonds' are the last private landholders around Mahler Refuge.

    More Political Incest: Jake Klonoski is an Attorney Advisor in the Department of the Inspector General 9th Circuit Court of Appeals.
    https://www.linkedin.com/in/ja
    In 1978 (judge) Ann Aiken married James Klonoski, and Jake Klonoski is their son.

    The 9th Circuit Court of Appeals is where Amanda Marshall submitted her appeal to send the Hammonds' back to prison for more jail time.

    "In order to re-sentence the Hammonds as terrorists the United States Government had to file an appeal Under 18 U.S. Code 3742 (B).

    According to the code; “…The Government may not further prosecute such appeal without the personal approval of the Attorney General, the Inspector General,

    or a deputy inspector general designated by the Inspector General. The same Inspector General where Jake Klonoski is employed as a key Attorney Adviser."
    http://www.fourwinds10.net/sit

    Only 1% of the 5,000 odd appeals are ever picked to be heard in the 9th Circuit Court of Appeals.

    "Each year the Ninth Circuit Court of Appeals receives upwards of 5,000 requests for a new hearing before all the court’s judges, said Kelly Zusman, appellate chief for the U.S. attorney’s office in Oregon. The judges only hear about 1 percent of those requests. “They grant very, very few,” she said." http://www.bendbulletin.com/lo

    "Judge Aiken was also the presiding Judge in a 2006 case that overturned several key provisions of the Steens Mountain Cooperative Management and Protection Act of 2000 which she found violated the supremacy of the Federal Environmental Protection Act."
    http://www.fourwinds10.net/sit
    "A management plan that the Hammonds were key in helping construct."

    "It should be noticed that the Hammonds, as acknowledged by Congressman Walden, were instrumental in development

    of the co-operative plan." http://agenda21radio.com/?p=23

    Judge Aiken’s decision weighed heavily based on affidavit testimony by Harney County Judge Stephen Grasty, whose actions have come into question and extreme scrutiny since the occupation began."

    Harney County 'judge' Stephen Grasty, has a brother that is a BLM supervisor.
    http://wn.com/blm_oregon_judge

    Steve Grasty is not a real 'judge' in the legal, judiciary sense. Harney County, Oregon has a strange system (yes, there are a lot of things
    in Harney County that are not normal) where the three elected country commissioners (of which Steve Grasty is one), refer to the third
    commissioner as 'judge'. This is an administrative body, NOT judicial. http://www.co.harney.or.us/

    The Real Judiciary system in Harney County, Oregon is called Harney County CIRCUIT Court.
    http://courts.oregon.gov/Harne

    Harney County BLM Manager is Rhonda Karges, who is married to Chad Karges, the manager of Mahler Wildlife Refuge.
    http://tekgnosis.typepad.com/t

    The BLM expended no monies or efforts in putting out the 139 acres of fire they accused the Hammonds' of deliberately setting.

    So why the $400,000 fine the Hammonds' were forced to pay?

    The State of Oregon has its' own wildfire insurance policy through Lloyd's of London.

    So why the $400,000 fine the Hammonds' were forced to pay?

    http://www.bendbulletin.com/lo

    If the BLM and corrupt county officials that perjured themselves were not guilty of collusion in their agenda to obtain the last checkerboarded piece of land in and around Mahler Wildlife Refuge, why did they insist on being first in line to buy the Hammond's ranch?
    ________________________________________________________________________________________________________________________________

    There is more 'evidence': 12-31-2015 affidavit filed stating Assistant US Prosecutor Papagni called Kendra Matthews and Lawrence Matasar (Hammonds attorneys) and that Papagni told Hammonds' attorney's if the Hammond's made any 'fuss', they would be reporting to a harder prison and at a much earlier report date. PDF court document

    Other information: No 'fire arson' experts were ever produced to testify against the Hammonds'. It was just BLM saying it was arson.

    No deer bones, or other evidence was ever produced by prosecution against the Hammonds'.

    (deer bones aren't going to burn up in a simple grass fire)

    If the 'hunting party' allegedly witnessed this ( the hunting guide's permit comes from BLM), it would seem odd

    why none of them popped out their cell phones, or camera's to take pictures of such alleged crimes

    Note: Most people think Frank Papagni prosecuted the Hammond's: but he was Assistant US Attorney for Oregon.

    Amanda Marshall, State US Attorney for Oregon, was his boss.
    ________________________________________________________________________________

  74. frank says

    what would happen if they were released and found original sentence was enough . might make precedent for terroisum law manditory minimum meaningless and maybe the law itself not worth the paper its "rotten" on ( oops ment written ) lol

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