Mistrial Declared In Militia Conspiracy Trial Four Convicted On Weapons Charges

A federal judge Friday declared a mistrial on conspiracy charges against seven anti-government activists when jurors said they could not reach agreement after more than a week of deliberation.

Four of the defendants were convicted on weapons charges.

Jurors told U.S. District Judge John Coughenour they were unable to reach a verdict on the conspiracy charge faced by all seven defendants, who had ties to the militia and freemen movements.

Prosecutors will decide within two weeks whether to seek a retrial, Assistant U.S. Attorney Gene Porter said after the proceeding.

“There’s not been a resolution to the conspiracy count,” Porter said. “Now we must reevaluate and that’s going to require some analysis.”

There was a collective sigh of relief from defendants and their families when the jury forewoman said there was no verdict on the conspiracy charge - the first count in the indictment.

Convicted on weapons charges were Washington State Militia founder John Irvin Pitner, 45, of Deming, for possession and transfer of machine guns; John Lloyd Kirk, 56, of Tukwila, and Marlin Lane Mack, 24, of Bellingham, possession of an unregistered destructive device; and Gary Marvin Kuehnoel, 48, of Bellingham, possession of a machine gun.

Prosecutors said the maximum penalty for each offense is 10 years imprisonment and a fine of $250,000.

“It could have been better, it could have been worse,” said Pitner’s attorney, James Lobsenz.

Jurors, deliberating since Feb. 20, could not reach verdicts on additional weapons charges against Kirk and his wife, Judy Carol Kirk, 54, and against Kuehnoel.

Kuehnoel was found innocent of three counts of possession of an unregistered firearm.

“We admitted that he did sell one machine gun and converted two other guns from semiautomatic to automatic machine guns, but it was all done at the request of the FBI, and on those counts the jurors did not find him guilty,” said Kuehnoel’s attorney, David B. Zuckerman.

Coughenour ordered the three defendants not convicted of any charges released on their own recognizance. They are Judy Kirk, Frederick Benjamin Fisher, 61, of Bellingham, and Tracy Lee Brown, also known as William Smith, 55, of Seattle.

Fisher and Judy Kirk smiled and shook hands after the proceeding, but declined comment as they left the courthouse.

“If an individual person violates the law and has some kind of illegal weapon or device, well, you prosecute that person,” said Judy Kirk’s attorney, Howard Ratner.

“But to try to find a conspiracy and make a big deal out of nothing, it just doesn’t make a whole lot of sense, and I think that’s what the jury was finding.”

Porter asked Coughenour to reconsider his decision to release three defendants pending a decision on a retrial.

“After becoming familiar with the evidence of this case, I am satisfied that the detention order should be suspended,” the judge said.

He also denied prosecutors’ request to interview the jurors, citing strained relationships within the 12-member panel.

Jurors indicated they were having difficulty earlier this week, when 11 of them asked Coughenour to replace a 12th juror. The judge refused.

Late Thursday, defense attorneys filed a motion for mistrial, citing the jurors’ request as evidence that 11 jurors were trying to coerce the 12th, and saying at least one juror had engaged in misconduct by working on the case outside the presence of the others. The motion cited use of a typewriter in a note sent to Coughenour by the 12th juror Thursday. There is no typewriter in the jury room.

The judge instead polled the jury early Friday. The handful of verdicts were handed down shortly thereafter.

During five weeks of testimony, jurors heard stories of booby traps, pipe bombs, weapons stockpiles and foreign invaders.

Prosecutors said the defendants were convinced that United Nations troops were going to invade America by way of Canada, and that federal agents would help establish a “new world order.” Kirk and Smith are freemen, the four other men are militia members and Judy Kirk was portrayed as a sympathizer.

Defense attorneys contended the government entrapped some defendants and that prosecutors failed to show the guilt of others.