United States v. Duane Ehmer
FOR PUBLICATION (2023)
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Rule of Law:
A district court’s sua sponte and ex parte excusal of prospective jurors for cause based on case-specific determinations of bias constitutes a critical stage of the criminal proceedings to which a defendant's right to counsel and right to be heard attaches. However, such an error does not require automatic reversal and may be deemed harmless if a retrospective review of the paper record demonstrates beyond a reasonable doubt that the excused jurors would and should have been released in any event.
Facts:
- In January 2016, Ammon Bundy and others began an armed occupation of the Malheur National Wildlife Refuge (Malheur NWR) in Oregon to protest federal land management policies.
- Duane Leo Ehmer, Darryl William Thorn, Jake Ryan, and Jason Patrick subsequently joined the 41-day occupation.
- During the occupation, many participants, including Ehmer, Thorn, Ryan, and Patrick, were armed, guarded refuge entrances, and used government buildings and equipment.
- At one point, Patrick was filmed cutting through a wire fence on the refuge.
- After the occupation's leadership was arrested and one occupier was fatally shot by law enforcement on January 26, 2016, Patrick and Thorn urged others to continue the occupation.
- On January 27, concerned about a potential FBI assault on the refuge, Ehmer and Ryan used a government-owned excavator to dig two large defensive trenches on refuge property.
- Ehmer, Thorn, Patrick, and Ryan all departed the refuge by January 28, 2016.
Procedural Posture:
- A grand jury in the U.S. District Court for the District of Oregon indicted Duane Ehmer, Darryl Thorn, Jake Ryan, Jason Patrick, and others on various felony charges, including conspiracy to impede federal officers.
- The government subsequently filed a separate misdemeanor information against the Appellants for offenses including trespassing and tampering with government property.
- The government also obtained a separate felony indictment against Ehmer for depredation of government property, which the district court consolidated with the other charges for trial.
- The district court denied Appellants' demand for a jury trial on the misdemeanor counts, ruling they were petty offenses not subject to the Sixth Amendment jury trial right.
- Following a trial, a jury convicted Patrick and Thorn of conspiracy, Ryan and Ehmer of depredation of property, and Thorn of possessing a firearm in a federal facility.
- The district court, acting as the fact-finder in a bench trial, convicted each of the four Appellants of at least one misdemeanor charge.
- The district court entered judgments of conviction and sentenced the Appellants to terms of imprisonment.
- Patrick, Thorn, Ryan, and Ehmer appealed their convictions and sentences to the U.S. Court of Appeals for the Ninth Circuit.
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Issue:
Does a district court commit reversible error when it sua sponte and ex parte excuses prospective jurors for cause based on their written questionnaire responses without providing the defendants or their counsel an opportunity to be heard?
Opinions:
Majority - Collins, J.
No, a district court does not commit reversible error under these specific circumstances. While excusing jurors for cause based on case-specific bias is a 'critical stage' of the proceedings that requires the participation of counsel, the error here was not structural and was ultimately harmless. The court distinguishes permissible ex parte administrative screening for hardship (United States v. Calaway) from impermissible ex parte for-cause excusals based on case-specific bias (United States v. Bordallo). The district court erred by making case-specific excusals for cause without input from the parties. However, this error does not require automatic reversal under United States v. Cronic because a prejudice inquiry is not 'impractical' where the decisions were based on a discrete paper record (the questionnaires) that counsel could later review. Applying a harmless error analysis, the court reviewed the questionnaires of the nine prospective jurors identified by the defense and concluded beyond a reasonable doubt that they 'would and should have been released in any event' due to clear bias or other disqualifying factors. Therefore, the defendants were not prejudiced. The court also held that Appellants had no Sixth Amendment right to a jury trial for their misdemeanor charges because the government properly charged them as 'petty offenses' under a statute with a maximum six-month sentence.
Concurring in part - Berzon, J.
Yes, the district court erred, and while the error does not require reversal, the majority's harmlessness analysis is incorrect. The majority is wrong to conclude that the excused jurors were so clearly biased that their removal was inevitable; for-cause challenges often involve discretionary judgments that could be influenced by counsel's arguments. The proper harmlessness inquiry is not whether the individual excusals were correct, but whether the jury that was ultimately empaneled was impartial. Because the defendants have not alleged that any empaneled juror was biased or that the excusals skewed the overall composition of the jury venire, the error was harmless under Circuit precedent like Padilla-Mendoza. Similarly, Cronic automatic reversal is inappropriate because a reliable prejudice analysis is possible by examining the fairness of the empaneled jury, not by second-guessing the discretionary excusals of individual jurors.
Analysis:
This decision clarifies the boundary between permissible administrative jury screening and a 'critical stage' of trial requiring counsel's participation, confirming that case-specific for-cause excusals are a critical stage even when based solely on written questionnaires. However, the holding significantly limits the remedy for violations by finding the error harmless through a retrospective paper review, creating a high bar for defendants seeking reversal on such grounds. This approach signals to lower courts that while such ex parte procedures are improper and risk reversal, a conviction will stand if the government can later show the excused jurors were clearly unfit to serve, thereby prioritizing finality over procedural perfection.
