Utah blogger, and others, convicted of conspiracy for Facebook posts, videos, in battle with BLM
The federal government’s use of social media posts, conversations in video interviews, and remarks made casually in public meetings as evidence of criminal conspiracy poses an unprecedented threat to Americans’ First Amendment rights.
One word keeps echoes through the cacophony made by federal land management agencies as they round up and jail Americans in western states. That word is “conspiracy.”
As defined in federal statute, “conspiracy” means:
An agreement between two or more people to commit an illegal act, along with an intent to achieve the agreement’s goal. Most U.S. jurisdictions also require an overt act toward furthering the agreement. An overt act is a statutory requirement, not a constitutional one. See Whitfield v. United States, 453 U.S. 209 (2005). The illegal act is the conspiracy’s “target offense.”
The saga of Recapture Canyon gained attention across the West when Phil Lyman, a commissioner from Blanding, Utah, was convicted last summer on federal charges of trespass and conspiracy for leading a “freedom ride” through a well-traveled canyon in remote San Juan County. The story is complicated, infuriating, and disquieting, because Lyman and his “co-conspirator” Monte Wells, a city councilman from Monticello, also in San Juan County, Utah, were prosecuted with evidence taken from Facebook posts and a video interview on Youtube.
A motion titled PROFFER OF CONSPIRATOR STATEMENTS, which was filed on April 10, 2015 by U.S. Attorney, Carlie Christensen, describes the “conspiratorial activities” of Lyman and Wells.
The federal prosecutor asserted that social media posts and interviews produced by Lyman and Wells mentioning the Recapture freedom ride constituted “verbal acts” and not mere hearsay.
The government concludes that “invitations” are verbal acts constituting criminal conspiracy.
Below are excerpts detailing the government’s evidence of conspiracy from the motion in question:
Here, the prosecution admits that Lyman’s Facebook post merely makes a recommendation to readers.
Here, the prosecution cites Monte Wells’ blog, “The Petroglyph” and his article containing the date of the freedom ride, as well as language confronting federal overreach, as evidence of criminal conspiracy.
Here, the prosecution cites the video interview, which was recorded and posted by Mr. Wells on his Youtube channel, as evidence of criminal conspiracy against the federal government.
Here the prosecution cites Lyman’s Facebook posts, and a Deseret News editorial he published. The editorial is cited as evidence of criminal conspiracy despite the fact the newspaper did not publish language referring to the freedom ride.
Here, the prosecution cites Lyman’s remarks in a San Juan County Commission meeting as well as additional Facebook posts, as evidence of criminal conspiracy.
Lyman and Wells were both convicted in May of 2015. Lyman was given a sentence of 10 days, and Wells a sentence of 5 days to be served in a federal prison. Lyman and Wells were also ordered to pay $96,000 in restitution for purported damages caused by the ATV ride through Recapture Canyon. During the course of the Lyman and Wells’ trial for conspiracy and trespass, a total of four judges recused themselves from the case due to entanglements with Bureau of Land Management employees and radical environmentalist interests in southeastern Utah.
The most troubling aspect of this case is that it’s not unique. The federal government’s use of non-violent, social media posts, video interviews, and other communications, as evidence of criminal conspiracy has been used to convict ranchers and silence dissenters.
The imaginative application of conspiracy charges against citizens is disturbing for a number of reasons, not the least of which is—as in the case of the Hammonds—the fact that some so charged had no intent to break the law.
Dwight and Steven Hammond, father and son ranchers from Harney County, Oregon, have run cattle on their family’s property for generations. As a matter of land management, the Hammonds would set regular prescriptive fires on their property to burn overgrown rangeland in an effort to get rid of invasive species and improve the forage. In two separate instances; once in 2001 and again in 2006, the burns accidentally spread to federally-owned Bureau of Land Management property which was adjacent their own property, burning a relatively small area of public land. Federal officials charged the men with nine counts, including arson and conspiracy, and prosecuted then under the Antiterrorism and Effective Death Penalty statute. They were convicted in 2012 and both Dwight and Steven served several months in jail. But in 2015, the U.S. Attorney for Oregon appealed to the Obama Administration’s Department to have the full penalty of 5 years in federal prison applied to the case, and last October both men were resentenced.
The Government’s case against the Hammonds assumed that they intended to destroy federal property, which they denied. The Government also assumes that the men conspired to commit an illegal act, which they also denied. The Hammonds admitted to setting prescriptive fires on their own property, and they admit that the fires inadvertently spread to federally-owned property, but they have always held that there was no intention to commit an illegal act or related conspiracy.
Nevertheless, ranchers Dwight and Steven Hammond are currently serving terms in federal prison as terrorists.
Cliven Bundy is the elderly rancher from Bunkerville, Nevada who, according to government officials, owed hundreds of thousands to millions of dollars (depending on who you’re talking to) in grazing fees to the Bureau of Land Management (BLM). Bundy’s non-compliance, he argued, was based on the fact that his family had grazed cattle on the high desert in southeastern Nevada for generations, and that the BLM was trespassing on the land he managed, not vise versa. Armed agents from the BLM and FBI arrived in convoys of SUV’s and assault vehicles to confiscate Bundy’s cattle, but were met by relatives, friends, and supporters of the Bundy family. The federal assault at Bunkerville was eventually rebuffed during the course of a tense standoff between “militia” members on horseback, and hundreds of supporters, many of them women and children belonging to neighboring ranching families. After more than two weeks, the federal agents abandoned the effort to take Bundy’s cattle, and stood down. The ranchers appeared to have won, and Cliven Bundy continued to assert that he owed the BLM nothing in the form of remuneration.
The Bundy Sons
On January 2 of this year, in protest of the Hammonds’ imprisonment, Cliven Bundy’s sons, Ammon and Ryan, along with numerous members of the militia, traveled from Idaho, Nevada, and other western states, to Burns, Oregon, and occupied an empty building at the federally-owned Malheur Wildlife Refuge. Again, agents from the BLM and FBI attempted—at first–peaceful means to drive the protesters off federal land and out of the Burns area. But on January 26, LaVoy Finicum, a rancher from northern Arizona who was acting as spokesman for the protesters, was traveling with several passengers, to a public meeting in Grant County, Oregon, when FBI and local law-enforcement agents barricaded the highway and forced his vehicle into the snow. Although accounts of witnesses and government agents differ greatly, Finicum was shot and killed at the site. Following his death, Ammon and Ryan Bundy, and six other protesters, including radio talk show host, Pete Santilli, who were also travelling to the public meeting in Grant County, were arrested and taken into custody. Conspiracy to impede federal officers was cited in their indictment, despite the fact they did not resist arrest when stopped on the way to the public meeting.
On March 3, Bundy brothers, Davey and Melvin were arrested, among others, in federal raids across 6 western states. Charges have not been released at the time of this writing.
Dissenting voices across the West are being silenced by militarized federal agents and audacious and unaccountable federal prosecutors.
The federal government’s use of social media posts, conversations in video interviews, and remarks made casually in public meetings as evidence of criminal conspiracy poses an unprecedented threat to Americans’ First Amendment rights, and, as is evidenced by the cases mentioned above, as a means to silence dissent.
by Marjorie Haun 3/4/16