No. 16-30080

_____________________________________

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

_____________________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

AMMON BUNDY,

RYAN PAYNE,

RYAN BUNDY, 

BRIAN CAVALIER,

and BLAINE COOPER,

Defendants-Appellants.

__________________________________________________

Interlocutory Appeal & Petition for Writ of Mandamus

from the United States District Court for the District of Oregon

Portland Division

___________________________________________________

APPELLANTS’ OPENING BRIEF

Lisa Hay, OSB #980628

Federal Public Defender

Rich Federico, IN Bar #23818-89

Assistant Federal Public Defender

101 S.W. Main Street, Suite 1700

Portland, Oregon 97204

(503) 326-2123 Telephone

(503) 326-5524 Facsimile

Attorneys for Defendant Ryan Payne

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TABLE OF CONTENTS

STATEMENT OF JURISDICTION..........................................................................1

STATEMENT OF ISSUE..........................................................................................2

STATEMENT OF THE CASE..................................................................................2

A. Nature of the Case.......................................................................2

B. Relevant Facts and Procedural History.......................................3

C. Standard Of Review....................................................................9

D. Custody Status.............................................................................9

SUMMARY OF THE ARGUMENT ........................................................................9

ARGUMENT...........................................................................................................11

I. By Following The Requirement That One Prosecution Finish Before 

Another Begins, The Federal District Courts Are Not Placed In The 

Position Of Refereeing Priority Between Federal Prosecutors In 

Different Districts, Which Implicates A Panoply Of Constitutional 

Criminal Procedure Rights As Well As The Separation Of Powers 

Doctrine ..............................................................................................11

II. The Nevada Magistrate Court Lacked Authority To Issue The Writs Of 

Habeas Corpus Ad Prosequendum Through Ex Parte Proceedings In 

Nevada To Remove Defendants From Oregon, Where Their Rights To 

Counsel, Speedy Trial, And Due Process Had Attached ....................15

A. The Nevada Magistrate Judge Lacked Jurisdictional Authority 

To Issue The Writs For Federal Pretrial Detainees In Oregon In 

Ex Parte Proceedings................................................................16

B. Issuance Of The Writs Ad Prosequendum Violated The Priority 

Of Jurisdiction And Principles Of Comity And Runs Contrary To 

Congressional Intent .................................................................21

C. Enforcement Of The Writs Ad Prosequendum Will Violate 

Defendants’ Right To A Speedy Trial, Right To Effective 

Assistance Of Counsel, And Right To Due Process of Law ....23

i

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III. The District of Oregon’s Refusal To Quash A Writ of Habeas Corpus 

Ad Prosequendum Issued by the United States District Court for the 

District of Nevada Purporting to Require Defendants To Be

Transported To Nevada For First Appearances Falls Within The 

Collateral Order Doctrine Or, In The Alternative, Warrants Issuance Of 

A Writ Of Mandamus..........................................................................29

CONCLUSION........................................................................................................33

ii

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TABLE OF AUTHORITIES

CASES

Andreiu v. Ashcroft,

253 F.3d 477 (9th Cir. 2001) ...............................................................................22

Bauman v. United States District Court,

557 F.2d 650 (9th Cir. 1977) .................................................................................1

Branch.” Mistretta v. United States,

488 U.S. 361 (1989).............................................................................................15

Carbo v. United States,

364 U.S. 611 (1961)...................................................................................... 16, 17

Chapman v. California,

386 U.S. 18 (1967)...............................................................................................25

Clark v. Martinez,

543 U.S. 371 (2005).............................................................................................20

Cohen v. Beneficial Indus. Loan Corp.,

337 U.S. 541 (1949)...............................................................................................1

Digital Equipment Corp. v. Desktop Direct, Inc.,

511 U.S. 863 (1994).............................................................................................30

Doe v. Busby,

661 F.3d 1001 (9th Cir. 2011) ...............................................................................9

Ex parte Bollman,

8 U.S. (4 Cranch) 75 (1807) ................................................................................16

Firestone Tire & Rubber Co. v. Risjord,

449 U.S. 368 (1981).............................................................................................29

Geders v. United States,

425 U.S. 80 (1976)...............................................................................................25

Hamdi v. Rumsfeld,

542 U.S. 507 (2004)...................................................................................... 20, 22

Holloway v. Arkansas,

435 U.S. 475 (1978).............................................................................................25

Hyde v. Stone,

61 U.S. (20 How.) 170 (1857).............................................................................27

iii

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In re Ellis,

356 F.3d 1198 (9th Cir. 2004) .............................................................................12

Kentucky v. Stincer,

482 U.S. 730 (1987)...................................................................................... 14, 18

Mathews v. Eldridge,

424 U.S. 319 (1976).............................................................................................13

Mempa v. Rhay,

389 U.S. 128 (1967).............................................................................................14

Miller v. Gammie, 

335 F.3d 889 (9th Cir. 2003) ..................................................................................1

Mohawk Indus., Inc. v. Carpenter,

558 U.S. 100 (2009)...................................................................................... 30, 31

Morrissey v. Brewer,

408 U.S. 471 (1972).............................................................................................13

Nken v. Holder,

556 U.S. 418 (2009).............................................................................................23

Ponzi v. Fessenden,

258 U.S. 254 (1922).......................................................................... 11, 21, 26, 29

Powell v. Alabama,

287 U.S. 45 (1932).................................................................................. 18, 24, 27

Reynolds v. Thomas,

603 F.3d 1144 (9th Cir. 2010) .............................................................................21

Rinaldi v. United States,

434 U.S. 22 (1977)...............................................................................................12

Robinson v. Shell Oil Co.,

519 U.S. 337 (1997).............................................................................................23

Rumsfeld v. Padilla,

542 U.S. 426 (2004).............................................................................................17

Santobello v. New York,

404 U.S. 257 (1971).............................................................................................27

Setser v. United States,

132 S. Ct. 1463 (2012).........................................................................................21

Stamphill v. Johnston,

136 F.2d 291 (9th Cir. 1943) ...............................................................................27

iv

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Strickland v. Washington,

466 U.S. 668 (1984).............................................................................................24

Swint v. Chambers County Comm’n,

514 U.S. 35 (1995)...............................................................................................30

United States v. Alverson,

666 F.2d 341 (9th Cir. 1982) ...............................................................................14

United States v. Anaya,

779 F.2d 532 (9th Cir. 1985) .................................................................................9

United States v. Bergeson,

425 F.3d 1221 (9th Cir. 2005) .............................................................................24

United States v. Fei Ye,

436 F.3d 1117 (9th Cir. 2006) .............................................................................32

United States v. Harrington,

749 F.3d 825 (9th Cir. 2014) .................................................................................9

United States v. Irwin,

612 F.2d 1182 (9th Cir. 1980) .............................................................................24

United States v. Kelly,

661 F.3d 682 (1st Cir. 2011)................................................................................19

United States v. Kowalczyk,

805 F.3d 847 (9th Cir. 2015) .................................................................................9

United States v. Mauro,

436 U.S. 340 (1978)...................................................................................... 16, 17

United States v. Montes-Ruiz,

745 F.3d 1286 (9th Cir. 2014) .............................................................................22

United States v. Powell,

24 F.3d 28 (9th Cir. 1994) .....................................................................................9

United States v. Santiago,

46 F.3d 885 (9th Cir. 1995) .................................................................................27

United States v. Sherman,

821 F.2d 1337 (9th Cir. 1987) .............................................................................14

Will v. Hallock,

546 U.S. 345 (2006).............................................................................................31

STATUTORY AUTHORITIES

18 U.S.C. § 3161......................................................................................................28

18 U.S.C. § 3231........................................................................................................1

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18 U.S.C. App 1395-1398 (1976 ed.) .....................................................................15

28 U.S.C. § 519................................................................................................. 11, 13

28 U.S.C. § 1291..................................................................................................1, 29

28 U.S.C. § 1651........................................................................................................1

28 U.S.C. § 2241......................................................................................... 16, 17, 18

28 U.S.C. § 2251......................................................................................................22

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. VI .............................................................................................28

vi

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STATEMENT OF JURISDICTION

The district court has jurisdiction over the underlying criminal prosecution 

under 18 U.S.C. § 3231. The district court permitted the government, through writs

of habeas corpus ad prosequendum, to involuntarily transfer the defendants from 

Oregon, where they have been arraigned and are preparing for trial, to Nevada to 

face simultaneously a separate, complex criminal proceeding. CR 334; ER 1.

1

Because the district court order would immediately and irreparably affect the 

defendants’ rights to due process, speedy trial, and effective assistance of counsel, 

this Court has jurisdiction over this interlocutory appeal pursuant to 28 U.S.C. 

§ 1291 under the collateral order doctrine. See Cohen v. Beneficial Indus. Loan 

Corp., 337 U.S. 541, 546 (1949) (The collateral order doctrine applies to “that small 

class [of orders] which finally determine claims of right separable from, and 

collateral to, rights asserted in the action, too important to be denied review and too 

independent of the cause itself to require that appellate consideration be deferred 

until the whole case is adjudicated.”). Alternatively, this Court has jurisdiction to 

issue a writ of mandamus under the All Writs Act, 28 U.S.C. § 1651. See Miller v. 

Gammie, 335 F.3d 889, 895 (9th Cir. 2003) (en banc); Bauman v. U.S. Dist. Court, 

557 F.2d 650, 654 (9th Cir. 1977).

1 CR refers to the Clerk’s Record. ER Refers to the Excerpts of Record.

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STATEMENT OF ISSUE

After arraignment and detention on an indictment in one federal district court, 

does the non-consensual transfer of the defendant to another federal district court for 

arraignment on a different charge, before the resolution of the first case, lack a 

jurisdictional basis and infringe on the due process-based rules for priority of 

warrants, the Speedy Trial Act, and the Sixth Amendment right to counsel?

STATEMENT OF THE CASE

A. Nature of the Case

This is an unprecedented case in which the defendants, who are in custody, 

have been arraigned and are being tried in the District of Oregon on a complex, 

multi-count indictment, are now facing transportation by the government, over their 

objection, to the District of Nevada to be arraigned and face a second complex, 

multi-count indictment in Nevada. This interlocutory appeal involves Ryan Payne, 

Ammon Bundy, Ryan Bundy, Brian Cavalier, and Blaine Cooper.

2 Unless this Court 

intervenes, the defendants will be subjected to simultaneous prosecutions on 

2 Blaine Cooper was not included to the Notice of Appeal filed at the District 

Court. However, he is similarly situated to the other defendants and joins in the 

appeal. Also, the Oregon District Court’s order impacts defendants Peter Santilli 

and Joseph O’Shaughnessy, collaterally, as the district court’s order directing the 

transport of the defendants included directives to the Marshal regarding the transport 

of Santilli and O’Shaughnessy, who are both in the primary custody of Nevada. 

However, Mr. Santilli and Mr. O’Shaughnessy are not involved in this appeal.

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unrelated charges in two districts, roughly 1,000 miles apart, based on the 

prosecution’s tactical considerations. This Court should reverse the district court

order to preserve the normal course of criminal proceedings and to vindicate the due 

process-based priority of detainers, the right to a speedy trial, and guarantee of the 

effective assistance of counsel.

B. Relevant Facts and Procedural History

Starting on January 2, 2016, a group of American citizens arrived at the 

Malheur National Wildlife Refuge, thirty miles south of Burns, Oregon, after 

participating in organized protests regarding federal land use policies. Some of the 

protesters, including the defendants, remained at the National Wildlife Refuge, 

making statements to the press and conferring with public officials. Many protesters 

exercised their right to bear arms under the Second Amendment. The defendants 

remained on the National Wildlife Refuge until January 26, 2016, when, while 

driving to the neighboring Grant County, Oregon, to attend a public meeting, 

Ammon Bundy, Ryan Bundy, Ryan Payne, and Brian Cavalier, among others, were 

arrested on the roadside. Immediately after the arrest of these defendants, law 

enforcement officers shot and killed the driver of one of the cars.

The United States Department of Justice filed a criminal complaint against 

Ryan Payne, Ammon Bundy, Ryan Bundy, Brian Cavalier, and other defendants in 

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the United States District Court for the District of Oregon on January 26, 2016. CR

14; ER 109. Mr. Payne, Mr. Ammon Bundy, Mr. Ryan Bundy, and Mr. Cavalier

made their first appearance in Portland, Oregon, on January 27, 2016, where the 

Oregon District Court appointed counsel for the defendants and ordered them 

detained. CR 19, 20, 21, 22; ER 108, 107, 106, 105. The government obtained and 

filed a single count Indictment against 16 co-defendants on February 3, 2016. CR

58; ER 102. Prior to being arraigned, the defendants specifically asserted their rights 

and made a demand for a speedy trial. CR 183; ER 100. Claiming that “the discovery 

issues in defendants’ case will be some of the most complicated in the history of the 

district,” the government requested that the Oregon District Court declare the 

Oregon case to be complex. CR 185 at 2; ER 97. The defendants were arraigned on 

the Indictment on February 24, 2016, and again reiterated their demand for a speedy 

trial and objected to the government’s motion to designate the case as complex. CR 

185, 207; ER 96. 

On March 8, 2016, the government filed a Superseding Indictment that added 

charges and joined Mr. Cooper and co-defendants from another case in the District 

of Oregon, United States v. Cooper, Case No. 3:16-cr-00064-JO. CR 250; ER 90. 

This brought the number of co-defendants to 26. All allegations on the Superseding 

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Indictment arise from the alleged events that occurred at the Malheur National 

Wildlife Refuge.3

On March 9, 2016, the Oregon District Court overruled the defendants’

objections and declared the case to be complex due to the number of defendants

(many of whom are incarcerated), the volume of discovery, the extensive pretrial 

litigation anticipated, the distant location of the so-called “crime scene,” and “an 

overwhelming need for additional time to prepare for and to be ready for trial at a 

firm trial date.” CR 289 at 4-5; ER 83-84. As of the date of this filing, there remain

26 named defendants in the Oregon case. CR 334; ER 1. The Oregon District Court

stated that the cases will be tried by September 2016 “or earlier.” CR 340 at 19:21-

23; ER 26.

On February 10, 2016, Cliven Bundy, father of defendants Ammon Bundy 

and Ryan Bundy, was arrested on a warrant issued in Nevada Case No. 2:16-mj00127-PAL at the Portland airport where he had arrived from Nevada. See United 

States v. Bundy, Documents Received from Other Court, No. 3:16-mj-00014 (D. Or. 

Feb. 11, 2016) CR 1; ER 258. Cliven Bundy was arrested on a warrant from alleged 

3 During a joint status hearing on March 9, 2016, the district court ordered that 

all motions filed and orders issued in United States v. Cooper are deemed part of this 

matter and do not need to be re-filed. CR 285; ER 86.

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events that occurred in Nevada on or about April 2014. NV CR 2; ER 259. Cliven 

Bundy was detained in Oregon, then transferred to Nevada where he made a first 

appearance. NV CR 2, 3; ER 258, 257. On February 17, 2016, the Department of 

Justice obtained and filed an Indictment in the District of Nevada against Cliven 

Bundy, Ammon Bundy, Ryan Bundy, Ryan Payne, and Peter Santilli for alleged 

events that occurred in Nevada in April 2014. NV CR 5; ER 206. Defendants Brian 

Cavalier, Blaine Cooper, and others were added as co-defendants in Nevada by 

Superseding Indictment. NV CR 27; ER 142 (United States v. Cliven Bundy, No. 

2:16-cr-00046-GMN-PAL (D. Nev. Mar. 2, 2014)).

Although the government knew that the defendants were represented by 

counsel in Oregon, the government sought and obtained, through ex parte

proceedings in the Nevada district court, and with no notice to the defendants or their 

Oregon counsel, writs of habeas corpus ad prosequendum requiring the defendants 

to be transported to Nevada “for arraignment and from time to time and day to day 

thereafter[.]” CR 344; ER 72; see also CR 334; ER 1. Like the Oregon case, the 

Nevada case is likely to be declared complex. CR 340 at 46:6-7, 11-12; ER 53. The 

government declared its intention to proceed with both cases on a “parallel track.” 

CR 340 at 20:6; ER 27.

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On March 16, 2016, Ryan Payne filed his Unopposed Emergency Motion for 

Court Order Prohibiting United States Marshals from Removing Ryan Payne and 

Listed Defendants from the District of Oregon. CR 312. In the motion, the 

defendants argued that the Nevada district court lacked authority to issue writs ad 

prosequendum and disrupt the pending Oregon proceedings, asserting that such an 

interruption would violate their rights to a speedy trial, effective assistance of 

counsel, and due process of law. CR 312. On March 16, 2016, the district court 

granted an Interim Order prohibiting the United States Marshals from removing Mr.

Payne and all other defendants being detained in Case No. 3:16-cr-00051-BR from 

the District of Oregon. CR 313; ER 68.

On March 22, 2016, the district court conducted a “semi-joint” proceeding, in 

which the defendants, their Oregon counsel, and representatives of the Department 

of Justice in Oregon appeared in person, while United States Magistrate Judge Peggy 

Leen for the District of Nevada, representatives of the Department of Justice in 

Nevada, and defense counsel appointed in Nevada for Ryan Payne appeared by 

video link. CR 334; ER 1. During the “semi-joint” hearing, the district court sought 

the consent of the defendants to make their first appearance in the Nevada case by 

video link. CR 340 at 7:12; ER 14. The defendants refused to consent to such an 

important appearance by video and objected to the prospect of facing two 

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simultaneous prosecutions on different charges in different jurisdictions. CR 340 at 

12:6-7; ER 19. The Oregon District Court then sought and obtained assurances from 

the Nevada court that the defendants would be returned to Oregon within roughly 

ten days if they were transported to Nevada on the writs. The Nevada court “forecast 

that there is not any legal impediment to the return of the defendants to the District 

of Oregon” despite the announcement by Mr. Payne’s Nevada counsel that she

would object to Mr. Payne’s removal from Nevada if he is transported there. See CR 

340 at 30:23, 31:4-6, 45:23-24, 57:2-4; ER 37, 38, 52, 64. 

On March 22, 2016, the Oregon District Court vacated its Interim Order and 

denied the defendants’ motion seeking protection from the writs. The Oregon 

District Court ruled that the Nevada court had the power to issue the writs ad 

prosequendum because “the Court is not aware of any precedent declaring that coequal United States District Courts do not have the power to cooperate in the 

administration of their respective criminal proceedings.” CR 334 at 3-4; ER 3-4. The 

Oregon District Court also ruled that the defendants’ arguments pertaining to speedy 

trial, due process, and effective assistance of counsel were premature. CR 334 at 4; 

ER 4. Unless this Court intervenes, the United States Marshal has been ordered to 

transport the defendants from Portland, Oregon, to Las Vegas, Nevada, on April 13, 

2016, and return them to Oregon by April 25, 2016. CR 334 at 6; ER 6.

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C. Standard Of Review

This Court reviews de novo violations of right to counsel and due process of 

law, the issuance of writs of habeas corpus, issues of jurisdiction, and statutory 

interpretation. United States v. Kowalczyk, 805 F.3d 847, 856 (9th Cir. 2015) (right 

to counsel); United States v. Harrington, 749 F.3d 825, 828 (9th Cir. 2014) (due 

process); Doe v. Busby, 661 F.3d 1001, 1011 (9th Cir. 2011) (habeas corpus); United 

States v. Powell, 24 F.3d 28, 30 (9th Cir. 1994) (jurisdiction); United States v. Anaya, 

779 F.2d 532, 534 (9th Cir. 1985) (statutory interpretation). 

D. Custody Status

The defendants are all being held in the pretrial custody of the United States 

Marshal’s Service in the District of Oregon.

SUMMARY OF THE ARGUMENT

This case involves the unprecedented interruption of a federal prosecution by 

forcing defendants, after arraignment and before trial in a complex federal district 

court case, to be transported against their will to simultaneously face charges in 

another complex criminal case almost 1,000 miles away. The district court

recognized that important rights are at issue: “[T]he parties have raised important 

questions that are fundamental to court power and to the unusual situation here where 

two very complicated cases have been initiated by the United States in two different 

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districts involving so many of the same defendants who have been detained while

these proceedings go forward.” CR 340 at 54:1-6; ER 61. While ultimately failing 

to protect the defendants’ rights, the district court should never have been placed in 

the position of negotiating competing jurisdictional demands of another district 

court. The fundamental tenets of priority of jurisdiction and preservation of the 

defendants’ constitutional rights foreclose the use of a writ ad prosequendum to 

involuntarily force the defendants away from their attorneys and the forum litigating 

their case. The proceedings below exceeded the district courts’ authority because (1) 

the Nevada District Court lacked the jurisdictional authority to issue, through ex 

parte proceedings, the writs of habeas corpus ad prosequendum, (2) enforcement of 

the writs violates the fundamental tenets of priority and comity on which the federal

court system is based, and (3) the defendants’ constitutional rights are compromised 

by transportation to face a second, simultaneous complex trial in Nevada. The 

collateral order doctrine provides this Court the jurisdiction to correct the errors of 

the district court below. In the alternative, this Court should issue a writ of 

mandamus to prevent the irreparable harm that will result from the shuttling of 

pretrial detainees to another jurisdiction.

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ARGUMENT

I. By Following The Requirement That One Prosecution Finish Before 

Another Begins, The Federal District Courts Are Not Placed In The 

Position Of Refereeing Priority Between Federal Prosecutors In Different 

Districts, Which Implicates A Panoply Of Constitutional Criminal 

Procedure Rights As Well As The Separation Of Powers Doctrine.

The Oregon District Court’s order for a non-consensual transfer to face 

another federal prosecution in a different jurisdiction, after arraignment and before 

trial, is unprecedented for good reason. The government does not consist of 94 

fiefdoms operated as independent prosecutorial units. Rather, the Attorney General 

of the United States is responsible for all prosecutions that occur in all districts. See

28 U.S.C. § 519 (“[T]he Attorney General shall supervise all litigation to which the 

United States . . . is a party, and shall direct all United States attorneys, assistant 

United States attorneys, and special attorneys . . . in the discharge of their respective 

duties.”). Just as states and the federal government must prevent prosecutions from 

conflicting, the chief rule for maintaining rational interactions between separate 

federal prosecutions should adopt the analogy from commercial transactions: “[T]he 

court which first takes the subject-matter of the litigation into its control, whether 

this be person or property, must be permitted to exhaust its remedy, to attain which 

it assumed control, before the other court shall attempt to take it for its purpose.” See 

Ponzi v. Fessenden, 258 U.S. 254, 260 (1922). What the government cannot do is 

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force the district court judge to relieve prosecutors of their obligation to make what 

may be hard choices about the order of prosecution by allowing two prosecutions on 

different charges, from different acts at different times, to proceed at the same time 

in different jurisdictions.

The priority of prosecutions is simple: the government controls when and 

where charges are filed. After the first charge is filed and adversary proceedings 

commence, any other charges are lodged as detainers to notify custodians that the 

next charge must be addressed before the defendant is released. In an extreme case, 

if the government was dissatisfied with the order of prosecution, the prosecution 

could move to dismiss the first charge without prejudice under Rule 48(a) of Federal 

Rules of Criminal Procedure and allow the next charge to take precedence. Out of 

deference to prosecutorial discretion, the district court must grant the government’s 

motion unless dismissal is “clearly contrary to manifest public interest.” Rinaldi v. 

United States, 434 U.S. 22, 30 (1977); In re Ellis, 356 F.3d 1198, 1209-10 (9th Cir. 

2004). The defendant would have notice and an opportunity to persuade the district 

court judge that dismissal without prejudice should not be granted and to argue the 

consequences of the government’s tactical choices.

By allowing the government to avoid its priority decisions, the defendants 

were denied a range of basic trial rights while the Oregon judge was forced to act as 

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a prosecutorial referee inconsistent with the separation of the Executive Branch’s 

prosecutorial powers from the Judicial Branch’s neutral decision-making powers. 

There is a long litany of constitutional criminal procedure violations inherent in the 

government’s attempt to forcibly transfer the defendants out of the state and district 

wherein the crimes were allegedly committed. Further, the government’s order 

placed the Oregon District Court judge in the untenable position of having to 

negotiate the fraught conflict when two federal prosecutions in different districts 

seek to litigate the culpability of the same defendants at the same time.

The prosecution moving for a writ in Nevada that it knew would also directly 

impact the Oregon case, when viewed correctly as involving the unitary United 

States acting as a single prosecutorial entity under § 519, violated a series of basic 

constitutional rights:

• The government, after the initiation of adversary proceedings and 

appointment of counsel, moved for a judicial order materially affecting the 

Oregon prosecution without notice to the defendant or an opportunity to be 

heard in violation of basic procedural due process. Mathews v. Eldridge, 424 

U.S. 319, 333-35 (1976); Morrissey v. Brewer, 408 U.S. 471, 489 (1972).

• In violation of the Sixth Amendment, the defendants had no counsel to assist 

them at a “stage of a criminal proceeding where substantial rights of a criminal 

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accused may be affected,” here the determination that Nevada would seek to 

interrupt the Oregon proceedings. Mempa v. Rhay, 389 U.S. 128, 134-36 

(1967).

• The government initiated an ex parte contact with a judicial officer regarding 

a material issue in the Oregon prosecution in violation of due process. See

United States v. Alverson, 666 F.2d 341, 348-50 (9th Cir. 1982).

• By engaging in the ex parte contact, the government violated the defendants’

constitutional right to be present where his presence “would contribute to the 

fairness of the procedure,” Kentucky v. Stincer, 482 U.S. 730, 745 (1987), as 

well as the more “far-reaching” protections of Rule 43. United States v. 

Sherman, 821 F.2d 1337, 1339 (9th Cir. 1987).

• In violation of the rules of priority, the defendants were subjected to a court 

order that interrupted the prosecution in a single district in a manner that 

subverts the Speedy Trial Act and the right to counsel.

The government’s actions, based solely upon its own tactical considerations, 

placed the Oregon District Court judge in an untenable position. By forcing the 

Oregon District Court judge into the position of refereeing the competing efforts of 

the Oregon and Nevada prosecutors to litigate at the same time, the Executive 

Branch undermined “the authority and independence of one or another coordinate 

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Branch.” Mistretta v. United States, 488 U.S. 361, 382 (1989). Instead of deciding 

issues purely between the parties in the case under its jurisdiction, the Oregon judge 

had to triangulate the demands of the Nevada prosecutor, who obtained the ex parte

order from the Nevada judge, regarding charges filed later in time and in a different 

district. Pursuant to the Interstate Agreement on Detainers Act, 18 U.S.C. App. 

1395-1398 (1976 ed.), which applies to the federal government, the Nevada case 

should have simply been lodged as a detainer until the Oregon case was resolved. 

The government’s conflicting invocation of judicial authority from a competing 

district, outside of the consent of the defendant, places the Judiciary outside its 

appropriate role.

II. The Nevada Magistrate Court Lacked Authority To Issue The Writs Of 

Habeas Corpus Ad Prosequendum Through Ex Parte Proceedings In 

Nevada To Remove Defendants From Oregon, Where Their Rights To 

Counsel, Speedy Trial, And Due Process Had Attached.

The government’s ex parte actions renders invalid the writs issued by the 

Nevada district court and the Oregon District Court’s order allowing the writs to be 

executed. As applied in this context, the Nevada magistrate judge lacked the 

authority to issue writs of habeas corpus ad prosequendum in ex parte proceedings 

and order the defendants to be removed from Oregon in the middle of a case. 

Although federal courts, generally, have the authority to issue writs of habeas corpus 

ad prosequendum to remove prisoners from state proceedings, there is no 

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concomitant authority to remove them from pending federal proceedings. This is 

especially so where the first-in-time federal case has begun and where the defendants 

and their counsel are not advised of the application for a writ and subsequently object 

to disruption of the normal course of the federal prosecution.

A. The Nevada Magistrate Judge Lacked Jurisdictional Authority To 

Issue The Writs For Federal Pretrial Detainees In Oregon In Ex

Parte Proceedings.

Federal courts have limited statutory authority to issue writs of habeas corpus 

under 28 U.S.C. § 2241(a). Rasul v. Bush, 542 U.S. 466, 473-75 (2004). Although 

the initial statutory authority for issuing writs of habeas corpus did not expressly 

include the writ ad prosequendum, the Supreme Court interpreted the words “habeas 

corpus” to include the writ “necessary to remove a prisoner in order to prosecute him 

in the proper jurisdiction wherein the offense was committed.” Carbo v. United 

States, 364 U.S. 611, 615 (1961) (citing Ex parte Bollman, 8 U.S. (4 Cranch) 75, 98

(1807)). In 1948, a court’s authority to issue the writ ad prosequendum was made 

explicit with the enactment of 28 U.S.C. § 2241, which provides that the “writ of 

habeas corpus shall not extend to a prisoner unless . . . [i]t is necessary to bring him 

into court to testify or for trial.” 28 U.S.C. § 2241(c); see also United States v. 

Mauro, 436 U.S. 340, 357-58 (1978) (reviewing case law and legislative history of 

writs ad prosequendum). Where a defendant is already in pretrial custody pending 

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trial, the plain language of “necessary to bring him into court . . . for trial” does not 

literally apply. 28 U.S.C. § 2241(c)(5).

The statute includes a jurisdictional limiting clause authorizing courts to issue 

the writ only “within their respective jurisdictions.” 28 U.S.C. § 2241(a). The 

Supreme Court has interpreted this language to require that “the court issuing the 

writ have jurisdiction over the custodian.” Rumsfeld v. Padilla, 542 U.S. 426, 442 

(2004) (citation omitted). Congress added this limiting clause to the habeas statute 

in 1867 to avoid the “inconvenient [and] potentially embarrassing” possibility of 

judicial interference in a distant court. Id. (alteration in original) (citation omitted).

In 1961, the Supreme Court recognized an exception to these jurisdictional limits for 

writs ad prosequendum to obtain state court prisoners. Carbo, 364 U.S. at 612-13

(approving of writ issued by federal court in California to bring for trial a prisoner 

serving a state sentence in New York). As the Court has since explained, the 

authority of federal courts to secure the appearance of prisoners in state custody for 

federal trials had “never been doubted.” Mauro, 436 U.S. at 358, 360 (“The issuance 

of ad prosequendum writs by federal courts has a long history, dating back to the 

First Judiciary Act. We can therefore assume that Congress was well aware of the 

use of such writs by the Federal Government to obtain state prisoners[.]”) (second 

emphasis added). However, neither this Court nor the Supreme Court have held that 

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the jurisdictional limitations in 28 U.S.C. § 2241(a) may be ignored when the soughtafter person is a pretrial detainee in federal custody, as opposed to state custody.

Instead, the concerns identified by Congress when setting territorial limits on writs 

—the “inconvenient [and] potentially embarrassing” possibility of judicial 

interference in a distant court—should directly apply here. Rumsfeld, 542 U.S. at 

442 (alteration in original).

This is especially so when considering that the writs in this case were issued 

without providing the defendants with notice or an opportunity to be heard. CR 334 

at 3; ER 3 (noting the ex parte nature of the writ proceedings); see Powell v. 

Alabama, 287 U.S. 45, 68 (1932) (“[N]otice and hearing are preliminary steps 

essential to the passing of an enforceable judgment, and . . . they, together with a 

legally competent tribunal having jurisdiction of the case, constitute basic elements 

of the constitutional requirement of due process of law.”). Because the issuance of 

the writs ad prosequendum directly impacted the defendants’ ability to remain in 

Oregon and confront the charges against them in that district, the defendants were 

deprived of their right to counsel and their right to be present at a critical stage of 

the proceedings. See, e.g., Stincer, 482 U.S. at 745 (“[A] defendant is guaranteed the 

right to be present at any stage of the criminal proceeding that is critical to its 

outcome if his presence would contribute to the fairness of the procedure.”).

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The fact that defense counsel has been unable to locate a single case that 

explicitly authorizes federal district courts to use writs ad prosequendum to force a 

defendant to stand trial in a second matter—against a defendant’s consent and after 

constitutional rights have attached in the first case—is further indication that this 

unprecedented procedure should be reversed. In its response to the defendants’ 

emergency motion below, the government cited one case in support of its position 

that the Nevada court had the authority to issue the writs: United States v. Kelly, 661 

F.3d 682 (1st Cir. 2011). Although it is true that the defendant in Kelly was 

transported from the pretrial detention of one federal district court to another by writ 

ad prosequendum, the opinion simply did not address the authority of the court to 

issue the writ. Instead, it appears that the defendant and prosecution were 

cooperating by filing joint motions to stay time under the Speedy Trial Act and 

attempting to reach a global resolution. Kelly, 661 F.3d at 684. The First Circuit 

addressed the interplay between the Speedy Trial Act and writs ad prosequendum 

but did not address the authority of one federal district court to interrupt, against the 

defendant’s consent, the proceedings of another federal district court and force the 

defendant to defend against two complex trials simultaneously. Therefore, Kelly is 

not applicable to the “important questions that are fundamental to court power and 

to the unusual situation here where two very complicated cases have been initiated 

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by the United States in two different districts involving so many of the same 

defendants who have been detained while these proceedings go forward.” CR 340 at 

54:1-6; ER 61.

The Oregon District Court found that the writ ad prosequendum issued by the 

Nevada magistrate judge was valid because “the Court is not aware of any precedent 

declaring that co-equal United States District Courts do not have the power to 

cooperate in the administration of their respective criminal proceedings.” CR 334 at

3-4; ER 3-4. However, the absence of a statutory prohibition does not equal statutory 

authorization, especially where the enforcement of the writs ad prosequendum will 

violate the defendants’ constitutional rights and force them to defend against two 

complex criminal cases roughly 1,000 miles apart. See Hamdi v. Rumsfeld, 542 U.S. 

507, 544 (2004) (calling for Congress to unmistakably articulate when a statute will 

operate in “derogation of customary liberty”). This Court should avoid the serious 

constitutional problems created by the enforcement of the writs ad prosequendum 

and hold that Congress did not authorize one federal district court to interfere with 

the pending criminal case of another district court through the use of writs ad 

prosequendum. See Clark v. Martinez, 543 U.S. 371, 380-81 (2005) (If one statutory 

construction “would raise a multitude of constitutional problems, the other should 

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prevail—whether or not those constitutional problems pertain to the particular 

litigant before the Court.”).

B. Issuance Of The Writs Ad Prosequendum Violated The Priority Of 

Jurisdiction And Principles Of Comity And Runs Contrary To 

Congressional Intent.

Allowing the writs from Nevada to stand would contravene settled principles 

of priority of detainers and due process of law that form the bedrock of basic fairness 

and order in the federal criminal justice system. “Normally, the sovereign which first 

arrests an individual acquires priority of jurisdiction for purposes of trial, sentencing, 

and incarceration.” Reynolds v. Thomas, 603 F.3d 1144, 1152 (9th Cir. 2010) 

(internal quotation marks omitted) (citation omitted), abrogated on other grounds 

by Setser v. United States, 132 S. Ct. 1463 (2012). In order to preserve “harmonious 

and effective operation” among courts, “the court which first takes the subject-matter 

of the litigation into its control, whether this be person or property, must be permitted 

to exhaust its remedy, to attain which it assumed control, before the other court shall 

attempt to take it for its purpose.” Ponzi, 258 U.S. at 260, 263. Construing the habeas 

statute to allow one federal court to disrupt proceedings in another federal court 

would eviscerate this “chief rule” of comity and orderly procession identified by the 

Supreme Court in Ponzi. Id. at 260.

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Congress authorized federal courts to intervene in pending state court 

proceedings. 28 U.S.C. § 2251(a)(1) (“A justice or judge of the United States before 

whom a habeas corpus proceeding is pending, may, before final judgment or after 

final judgment of discharge, or pending appeal, stay any proceeding against the 

person detained in any State court or by or under the authority of any State for any 

matter involved in the habeas corpus proceeding.”). However, Congress provided no

parallel authority for one federal district court to stay another federal district court’s 

proceedings. See United States v. Montes-Ruiz, 745 F.3d 1286, 1291-93 (9th Cir. 

2014) (noting a “broader discretion bestowed upon federal judges to make the 

concurrent/consecutive determination when the other sentence is a state sentence 

rather than a federal one”). Congress’s omission of this comparable authority 

regarding federal proceedings must be regarded as intentional. See Andreiu v. 

Ashcroft, 253 F.3d 477, 480 (9th Cir. 2001) (“[W]here Congress includes particular 

language in one section of a statute but omits it in another section of the same Act, 

it is generally presumed that Congress acts intentionally and purposely in the 

disparate inclusion or exclusion.”) (alteration in original) (citation and internal 

quotation marks omitted). If Congress intended to authorize federal district courts to 

use writs ad prosequendum to interrupt the proceedings of co-equal federal district 

courts, it needed to say so clearly and unmistakably. See Hamdi, 542 U.S. at 544 

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(requiring a clear congressional directive when a statute will operate in “derogation 

of customary liberty”); Nken v. Holder, 556 U.S. 418, 426 (2009) (“[S]tatutory 

interpretation turns on ‘the language itself, the specific context in which that 

language is used, and the broader context of the statute as a whole’”) (quoting 

Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997)). Congress did not do so.

C. Enforcement Of The Writs Ad Prosequendum Will Violate 

Defendants’ Right To A Speedy Trial, Right To Effective 

Assistance Of Counsel, And Right To Due Process of Law.

The district court ordered that the defendants be transported to Nevada 

pursuant to the writs ad prosequendum on one occasion for a period of approximately 

10 days. CR 340 at 55:12; ER 62.

4 The district court erroneously asserted that this 

isolated transport would not violate the defendants’ constitutional rights and that any 

argument to the contrary was premature. CR 334 at 4; ER 4; CR 340 at 55:2-6; ER 

62. However, the defendants’ Sixth Amendment rights to counsel have already been 

violated by the issuance of the writs ad prosequendum without notice and 

opportunity to be heard in Nevada, and the interference with counsel and delay of 

trial—even by one day—is real and not speculative.

4 After the hearing and ex parte communications with the Marshal, the district 

court extended that period of time to 12 days. CR 334 at 6 n. 4; ER 6.

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Removal of the defendants from the District of Oregon will violate the 

defendants’ rights to the effective assistance of counsel for the remainder of these 

criminal proceedings and in both cases. The Sixth Amendment to the Constitution 

guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . 

to have the Assistance of Counsel for his defence.” The right to effective assistance 

of counsel includes the right to regularly and consistently consult with one’s attorney 

before trial. Powell v. Alabama, 287 U.S. 45, 59 (1932); see also Strickland v. 

Washington, 466 U.S. 668, 688 (1984) (imposing upon counsel an affirmative 

“dut[y] to consult with the defendant on important decisions and to keep the 

defendant informed of important developments . . .”); United States v. Bergeson, 425 

F.3d 1221, 1226 (9th Cir. 2005) (“A client’s confidence in his lawyer, and continuity 

of the attorney-client relationship, are critical to our system of justice.”); United 

States v. Irwin, 612 F.2d 1182, 1185 (9th Cir. 1980) (“It is clear that government 

interference with a defendant’s relationship with his attorney may render counsel’s 

assistance so ineffective as to violate his Sixth Amendment right to counsel and his 

Fifth Amendment right to due process of law.”). The Supreme Court has recognized 

the time between arraignment and trial to be “vitally important” and “perhaps the 

most critical period of the proceedings.” Powell, 287 U.S. at 57. 

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As counsel advised the Oregon judge, “[I]t is almost impossible for a lawyer 

to have an effective relationship for his or her client when they are a thousand miles 

away.” CR 340 at 45:8-11; ER 52. The district court’s contention that the ten- or 

twelve-day absence of the defendants will not impair counsels’ effective 

representation overlooks the fact that “the assistance of counsel is among those 

‘constitutional rights so basic to a fair trial that their infraction can never be treated 

as harmless error.’” Holloway v. Arkansas, 435 U.S. 475, 489 (1978) (quoting 

Chapman v. California, 386 U.S. 18, 23 (1967)); see also Geders v. United States, 

425 U.S. 80, 91(1976) (“[A]n order preventing petitioner from consulting his 

counsel ‘about anything’ during a 17-hour overnight recess between his direct- and 

cross-examination impinged upon his right to the assistance of counsel guaranteed 

by the Sixth Amendment.”) (emphasis added).5 During transportation by the 

5 In the district court, the government argued that “there are telephones, there 

are a number of means of communications in this modern era that would—that—

there’s access to the defendant that will certainly be sufficient in order for them to 

prepare.” CR 340 at 29:3-6; ER 36. The available evidence in the record does not 

support the government’s position. In addition, the defendants also note the multiple 

instances during the March 22, 2016 hearing in which individuals had trouble 

hearing or the court reporter was unable to transcribe words that were said during 

the video conference. See CR 340 at 8:9-11; 27:9; 27:16; 30:25; 35:7; 36:8; 37:2-4, 

12, 14; 42:3-4; ER 15, 34, 34, 37, 42, 43, 44, 49. These difficulties in communication 

occurred using the sophisticated video-link systems employed by the federal district 

courts.

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Marshal, the location of prisoners and their access to telephones is curtailed for 

security reasons. See USMS Policy Directive 16.2(F)(2)(c) (prohibiting prisoners 

from conversing with anyone other than other prisoners and custodial authorities and 

prohibiting the Marshals from allowing a prisoner to place telephone calls “while in 

custody of USMS personnel”). There will be a complete denial of consultation with 

counsel during transportation and concomitant inability to prepare for trial during 

that time.

In addition, despite the advisory opinion of the Nevada magistrate judge that 

there would be no legal impediment to the defendants being returned to Oregon from 

Nevada, Mr. Payne’s defense counsel in Nevada intends to file motions to keep Mr.

Payne in Nevada until his trial is completed there, and the government intends to 

proceed with parallel prosecutions. CR 340 at 20:6, 34:11; ER 27. Thus, if the writs 

are executed, the defendants are placed in an untenable situation: either consent to 

“ping-pong” transports between Oregon and Nevada, see CR 340 at 16:5; ER 23, or 

sacrifice unimpaired communication with their counsel in one location by remaining 

in the other location. See Ponzi, 258 U.S. at 260 (“One accused of crime, of course, 

cannot be in two places at the same time. He is entitled to be present at every stage 

of the trial of himself in each jurisdiction with full opportunity for defense.”). The 

impediments to effective representation placed on the defendants once the writs are 

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effectuated will impair the ability of defense counsel to identify witnesses, uncover 

evidence, develop a theory of the facts, and otherwise prepare for trial. The 

defendants “must not be stripped of [their] right to have sufficient time to advise 

with counsel and prepare [their] defense.” Powell, 287 U.S. at 59. 

The Attorney General, through the Oregon prosecution, elected to begin 

proceedings in Oregon, and the Oregon District Court has assumed jurisdiction over 

the defendants, requiring that the defendants’ cases here must be completed first. See 

Stamphill v. Johnston, 136 F.2d 291, 292 (9th Cir. 1943) (“Courts of the United 

States are bound to proceed to judgment * * * in every case to which their 

jurisdiction extends. They cannot abdicate their authority or duty in any case in favor 

of another jurisdiction.”) (quoting Hyde v. Stone, 61 U.S. (20 How.) 170, 175 

(1857)). The defendants should not be punished for the failure of the government to 

properly coordinate its cases. See Santobello v. New York, 404 U.S. 257, 262 (1971) 

(“The staff lawyers in a prosecutor’s office have the burden of ‘letting the left hand 

know what the right hand is doing’ or has done.”); see also United States v. Santiago, 

46 F.3d 885, 893 (9th Cir. 1995) (holding that prosecution cannot escape 

responsibilities by operating piecemeal through different federal prosecutorial 

entities).

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Allowing the writs to be executed will violate the defendants’ rights to a 

speedy trial. The Sixth Amendment provides that “[i]n all criminal prosecutions, the 

accused shall enjoy the right to a speedy and public trial.” U.S. Const. amend. VI. 

The defendants’ rights to a speedy trial have been triggered in Oregon, where they 

were arrested, indicted, and arraigned. 18 U.S.C. § 3161(c)(1) (“[T]he trial of a 

defendant charged in an information or indictment with the commission of an 

offense shall commence within seventy days from the filing date (and making 

public) of the information or indictment, or from the date the defendant has appeared 

before a judicial officer of the court in which such charge is pending, whichever date 

last occurs.”). The defendants demanded speedy trial, prior to and during the 

arraignment. CR 183; ER 100. The court declared the case to be complex based upon 

the government’s assertion that the discovery issues in the Oregon case “will be 

some of the most complicated in the history of the district.” CR 185 at 2; ER 97.

However, the speedy trial clock has not yet been triggered in Nevada for these 

defendants because they have not yet appeared in that district. Were the defendants 

to be transported and arraigned, the speedy trial clock would be triggered in that 

district as well. This would create the untenable situation of placing the defendants 

on trial in two jurisdictions at once. To repeat the Supreme Court’s words: “One 

accused of crime, of course, cannot be in two places at the same time. He is entitled 

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to be present at every stage of the trial of himself in each jurisdiction with full 

opportunity for defense.” Ponzi, 258 U.S. at 260. During time in transit and away, 

the defendants would be unable to prepare for the Oregon trial, consequently 

delaying and extending the time for trial.

III. The District of Oregon’s Refusal To Quash A Writ of Habeas Corpus Ad 

Prosequendum Issued by the United States District Court for the District 

of Nevada Purporting to Require Defendants To Be Transported To 

Nevada For First Appearances Falls Within The Collateral Order 

Doctrine Or, In The Alternative, Warrants Issuance Of A Writ Of 

Mandamus.

The unique and unprecedented nature of the issues presented in this appeal 

demonstrate the need for appellate review within the ambit of the collateral order

doctrine. 

Although appellate jurisdiction is generally limited to the final decisions of 

the district courts under 28 U.S.C. § 1291, the Supreme Court has recognized the 

collateral order doctrine as a narrow exception to the final decision requirement of §

1291. See Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374-75 (1981). 

Under the collateral order doctrine, this Court has jurisdiction over interlocutory 

appeals of pretrial district court orders that (1) “conclusively determine the disputed 

question;” (2) “resolve an important issue completely separate from the merits of the 

action;” and (3) are “effectively unreviewable on appeal from a final judgment.” Id.

at 375.

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The March 22, 2016, district court order meets all three of these factors. First, 

the order clearly and unequivocally denies the defendants’ motion to remain in 

Oregon until the conclusion of the Oregon proceedings and requires the United 

States Marshal for the District of Oregon to transport Defendants for first 

appearances in Nevada. The district court’s order is the “final word on the subject 

addressed.” Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868 (1994) 

(internal quotations omitted). Thus, this case meets the first factor of the collateral 

order doctrine.

Second, this interlocutory appeal focuses solely on the validity and execution 

of the Nevada writs, which will impact the defendants’ constitutional and statutory 

rights. It does not require this Court to examine the underlying innocence or guilt of 

those accused. The district court recognized that “[t]he parties have raised important

questions that are fundamental to court power” and also recognized “the unusual

situation here where two very complicated cases have been initiated by the United 

States in two different districts involving so many of the same defendants who have 

been detained while these proceedings go forward.” CR 340 at 54:1-6; ER 61

(emphasis added); see also Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 107 

(2009) (“The second condition insists upon ‘important questions separate from the 

merits.’”) (emphasis added by Mohawk court) (quoting Swint v. Chambers County 

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Comm’n, 514 U.S. 35, 42 (1995)). The defendants meet the second collateral order 

doctrine factor.

Third, unless the Court grants this interlocutory appeal, the defendants will be 

transported to Nevada and thereafter face two simultaneous, complex criminal 

proceedings approximately 1,000 miles apart. The rights at stake—once lost—will 

be lost forever and will undermine the legitimacy of the proceedings while impairing 

constitutional and statutory rights of the highest order. The crux of the analysis of 

the third collateral order doctrine factor “is whether delaying review until the entry 

of final judgment ‘would imperil a substantial public interest’ or ‘some particular 

value of a high order.’” Mohawk Indus., 558 U.S. at 107 (quoting Will v. Hallock, 

546 U.S. 345, 352-53 (2006)). There will be no meaningful remedy for the 

defendants once they are forced to appear in Nevada; they will be required to defend 

against two complex cases at once. Honoring the defendants’ request to hear this 

issue would at least present the defendants with the potential to avoid two 

simultaneous proceedings and the deleterious impact those two proceedings will 

have on their cases and rights. It would also—by deciding the issue before trial—be 

in the interests of judicial efficiency and mitigate the governments’ massive 

advantage over the defendants. See Will, 546 U.S. at 352-53 (indicating that factors 

like “honoring the separation of powers, preserving the efficiency of government 

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and the initiative of its officials, respecting a State’s dignitary interests, and 

mitigating the government’s advantage over the individual” are “value[s] of a high 

order”).

In the alternative, even if the Court were to determine that it lacked 

jurisdiction under the collateral order doctrine—a point the defendants do not 

concede—the Court would have jurisdiction under the All Writs Act to issue a writ 

of mandamus directing the district court to order the defendants held in Oregon until 

the conclusion of the Oregon proceedings. The notice of interlocutory appeal 

functions as an alternative request for mandamus relief. See Miller, 335 F.3d at 895 

(treating notice of appeal as a petition for a writ of mandamus). This Court has set 

out five factors to consider regarding the issuance of a writ of mandamus:

(1) whether the petitioner has no other adequate means to attain the 

relief he or she desires; (2) whether the petitioner will be damaged or 

prejudiced in a way that is not correctable on appeal; (3) whether the 

district court’s order is clearly erroneous as a matter of law; (4) whether 

the district court’s order is an oft-repeated error, or manifests a 

persistent disregard of the federal rules; and (5) whether the district 

court’s order raises new and important problems, or issues of law of 

first impression. A petitioner need not establish all five factors, and we 

will weigh the factors together based on the facts of the individual case.

United States v. Fei Ye, 436 F.3d 1117, 1121-22 (9th Cir. 2006) (internal citations 

omitted). The greater weight of these factors strongly militates in favor of mandamus 

relief. The defendants have no alternative, adequate means to obtain the relief they 

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seek, and denying appellate review of this important issue will not only waste 

governmental resources, it will also violate many of the defendants’ most sacred 

constitutional rights. The district court itself acknowledged that the issues are 

“important” and that the situation is “unusual.” Because each of the mandamus 

factors favors relief, the Court should grant an alternative writ of mandamus if the 

collateral order doctrine is found not to apply.

CONCLUSION

For the foregoing reasons, the defendants respectfully request that the Court 

hear the present appeal—either under the collateral order doctrine or as a writ of 

mandamus—and reverse the district court’s order, vacate the writs of habeas corpus 

ad prosequendum, and grant such further relief as law and justice require.

RESPECTFULLY SUBMITTED this 30th day of March, 2016.

Rich Federico

Attorney for Defendant Ryan Payne

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IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES, )

)

Plaintiff-Appellee, ) CA No. 16-30080

)

v. )

)

AMMON BUNDY, )

RYAN PAYNE, )

RYAN BUNDY, )

BRIAN CAVALIER, )

and BLAINE COOPER, )

)

Defendants-Appellants. )

______________________________

CERTIFICATE OF RELATED CASES

______________________________

I, Rich Federico, undersigned counsel of record for Defendant-Appellant, 

Ryan Payne state, pursuant to the Ninth Circuit Court of Appeals Rule 28-2.6, that I

know of no other cases that should be deemed related.

DATED: March 30, 2016.

Rich Federico

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Case 3:16-cr-00051-BR Document 357-1 Filed 03/30/16 Page 41 of 43
IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES, )

)

Plaintiff-Appellee, ) CA No. 16-30080

)

v. )

)

AMMON BUNDY, )

RYAN PAYNE, )

RYAN BUNDY, )

BRIAN CAVALIER, )

and BLAINE COOPER, )

)

Defendants-Appellants. )

______________________________

CERTIFICATE OF COMPLIANCE WITH RULE 32(a)

______________________________

This brief is submitted pursuant to Fed. R. App. P. 32(a)(7)(B) and (C) and 

Ninth Circuit Rule 32-1, because:

☒ it is a principal brief that exceeds 30 pages

☐ it is a reply brief that exceeds 15 pages

and I certify that it is proportionately spaced, has a typeface of 14 points or more and 

contains 7,709 words.

DATED this March 30, 2016.

Rich Federico

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Case 3:16-cr-00051-BR Document 357-1 Filed 03/30/16 Page 42 of 43
CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing Appellant’s Opening 

Brief with the Clerk of the Court for the United States Court of Appeals for the Ninth 

Circuit by using the appellate CM/ECF system on March 30, 2016.

I certify that all participants in the case are registered CM/ECF users and that 

service will be accomplished by the appellate CM/ECF system.

/s/ Jennifer Lillie

Jennifer Lillie

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