IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

UNITED STATES OF AMERICA, 

Plaintiff, 

v. 

AMMON BUNDY, JON RITZHEIMER, 

JOSEPH O'SHAUGHNESSY, RYAN 

PAYNE, RYAN BUNDY, BRIAN 

CAVALIER, SHAWNA COX, PETER 

SANTILLI, JASON PATRICK, 

DUANE LEO EHMER, DYLAN 

ANDERSON, SEAN ANDERSON, 

DAVID LEE FRY, JEFF WAYNE 

BANTA, SANDRA LYNN ANDERSON, 

KENNETH MEDENBACH, BLAINE 

COOPER, WESLEY KJAR, COREY 

LEQUIEU, NEIL WAMPLER, JASON 

CHARLES BLOMGREN, DARRYL 

WILLIAM THORN, GEOFFREY 

STANEK, TRAVIS COX, ERIC LEE 

FLORES, and JAKE RYAN, 

Defendants. 

3:16-cr-00051-BR 

ORDER GRANTING MOTION 

(#465) TO DISMISS AND 

DISMISSING COUNT 

THREE OF THE SUPERSEDING 

INDICTMENT 

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BROWN, Judge. 

This matter comes before the Court on the Motion (#465) to 

Dismiss filed by Defendants David Lee Fry, 1 Ammon Bundy, Jon 

Ritzheimer, Ryan Payne, Ryan Bundy, Brian Cavalier, Jason 

Patrick, and Sean Anderson. For the reasons that follow, the 

Court GRANTS Defendants' Motion and DISMISSES Count Three of the 

Superseding Indictment. 

BACKGROUND 

In Count Three of the Superseding Indictment (#282) the 

government charges Defendants with the use and carrying of a 

firearm in relation to a crime of violence in violation of 

18 U.S.C. § 924 (c) (1) (A). The "crime of violence" to which Count 

Three refers is the conspiracy to impede officers of the United 

States in violation of 18 U.S.C. § 372 as charged in Count One of 

the Superseding Indictment. In Count One the government alleges 

Defendants 

knowingly and willfully conspire[d) and agree[d) 

together and with each other and with persons known and 

unknown to the Grand Jury to prevent by force, 

intimidation, and threats, officers and employees of 

the United States Fish and Wildlife Service and the 

Bureau of Land Management, agencies within the United 

States Department of the Interior, from discharging the 

1 The Motion was filed by David Lee Fry on behalf of each of 

the Defendants named in Count Three of the Superseding 

Indictment, and for purposes of this Order the Court uses 

"Defendants" and "all Defendants" to refer to those Defendants. 

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duties of their office at the Malheur National Wildlife 

Refuge and other locations in Harney County, Oregon, in 

violation of Title 18, United States Code, Section 372. 

DISCUSSION 

Defendants contend Count Three must be dismissed because the 

Section 372 conspiracy offense charged in Count One is not a 

"crime of violence" within the meaning of§ 924(c) (1) (A). 

Section 924 (c) (3) defines a "crime of violence" as 

an offense that is a felony and -

(A) has as an element the use, attempted use, or 

threatened use of physical force against the person or 

property of another, or 

(B) that by its nature, involves a substantial risk 

that physical force against the person or property of 

another may be used in the course of committing the 

offense. 

The first half of this statutory definition of crime of violence 

is known as the "force clause." The second half of the 

definition, § 924 (c) (3) (B), is known as the "residual clause." 

Section 372, in turn, prohibits 

conspir[ing] to prevent, by force, intimidation, or 

threat, any person from accepting or holding any 

office, trust, or place of confidence under the United 

States, or from discharging any duties thereof, or to 

induce by like means any officer of the United States 

to leave the place, where his duties as an officer are 

required to be performed, or to injure him in his 

person or property on account of his lawful discharge 

of the duties of his office, or while engaged in the 

lawful discharge thereof, or to injure his property so 

as to molest, interrupt, hinder, or impede him in the 

discharge of his official duties. 

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I. Standard 

At the outset the Court must determine the standard to apply 

when assessing whether § 372 is a "crime of violence" within the 

meaning of§ 924(c). 

The parties generally agree the Court should apply the 

categorical approach first set out in Taylor v. United States, 

495 U.S. 575 (1990), to determine whether§ 372 is a "crime of 

violence" under§ 924(c). Under the categorical approach the 

court "look[s] to the elements of the offense rather than the 

particular facts" underlying a defendant's conviction to decide 

whether the offense "criminalize [s] 'a broader swath of conduct' 

than the conduct" covered by the definition of "crime of 

violence" in § 924 (c). See United States v. Dominguez-Maroyoqui, 

748 F. 3d 918, 920 (9th Cir. 2014) (quoting Descamps v. United 

States, 133 S. Ct. 2276, 2281 (2013)). Under the categorical 

approach the analysis focuses exclusively on the elements of the 

statute. Thus, if the elements of § 372 criminalize a "broader 

swath of conduct" than the definition of "crime of violence" in 

§ 924(c), then§ 372 cannot "qualify as a crime of violence, even 

if the facts underlying" the charge otherwise meet the 

definition. Dominguez-Maroyoqui, 748 F.3d at 920. See also 

Taylor, 495 U.S. at 600. The Court, therefore, does not express 

any opinion as to whether the alleged conduct underlying Count 

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One in the Superseding Indictment meets the definition of "crime 

of violence" in§ 924(c). 

"Under the categorical approach, the crime-of-violence 

determination 'function[s] as an on-off switch': An offense 

qualifies as a crime of violence 'in all cases or in none.'" 

Dominguez-Maroyoqui, 748 F.3d at 920 (quoting Descamps, 133 S.Ct. 

at 2287). 

Nevertheless, a court may employ a modified categorical 

approach in a "narrow range of cases" to look "beyond the 

statutory elements to 'the charging paper and jury instructions' 

used in a case" in order to determine whether the crime charged 

qualifies as a "crime of violence." Descamps, 133 S. Ct. at 

2283-84 (quoting Taylor, 495 U.S. at 602). Thus, the modified 

categorical approach is "a tool for implementing the categorical 

approach" that in certain cases permits the court to "examine a 

limited class of documents to determine which of a statute's 

alternative elements formed the basis of the defendant's prior 

conviction." Descamps, 133 S. Ct. at 2284. The modified 

categorical approach, however, does not provide any basis for the 

court to look at the conduct of the defendant beyond the elements 

within the statute. See id. In any event, a court may only 

apply the modified categorical approach if the "statute at issue 

is divisible." Rendon v. Holder, 764 F.3d 1077, 1083 (9th Cir. 

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2014). The "critical distinction" when determining whether a 

statute is divisible "is that while indivisible statutes may 

contain multiple, alternative means of committing the crime, only 

divisible statutes contain multiple, alternative elements of 

functionally separate crimes." Id. at 1084-85. 

Here the government emphasizes the fact that the categorical 

approach is most often applied when a court is retrospectively 

determining whether a defendant's existing conviction qualifies 

as a "crime of violence" for sentencing purposes or other 

statutory applications. Moreover, the government notes some 

trial courts have questioned whether the categorical approach 

even applies when a court is determining whether a concurrentlycharged offense for which a defendant has yet to stand trial 

qualifies as a "crime of violence" under§ 924(c)). See, e.g., 

United States v. Wells, No. 2:14-cr-00280-JCM-GWF, 2015 WL 

10352877, at *1-*5 (D. Nev. Dec. 30, 2015), adopted by 2016 WL 

697107 (Feb. 19, 2016); United States v. Woodley, No. 15-cr20007, 2015 WL 7770859 (E.D. Mich. Dec. 3, 2015); United States 

v. Standberry, 139 F. Supp. 3d 734, 735-37 (E.D. Va. 2015). But 

see United States v. Smith, No. 2:11-cr-00058-JAD-CWH, 2016 WL 

2901661, at *3 (D. Nev. May 18, 2016) (questioning the "utility of 

the categorical approaches outside of the sentencing context," 

but, nonetheless, following the Ninth Circuit's holding "that the 

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categorical analyses apply to§ 924(c) crime-of-violence 

determinations both at trial and at sentencing 'without regard to 

whether the given offense is a prior offense or the offense of 

conviction.'") (quoting United States v. Piccolo, 441 F.3d 1084, 

1086 (9th Cir. 2006)). In particular, these courts have 

questioned whether the Supreme Court's rationale for employing 

the categorical approach in a retrospective analysis applies with 

equal force when a court determines whether a concurrentlycharged offense is a "crime of violence" in the context of a 

pretrial motion to dismiss. These courts have observed that, 

unlike in the sentencing context, a properly instructed jury may 

determine factually whether the underlying crime qualifies a 

"crime of violence." See Woodley, 2015 WL 7770859, at *4-*5. 

Although this Court acknowledges the legitimate reasoning of 

the district court opinions on which the government relies, the 

Court, nevertheless, is bound by Ninth Circuit precedent that the 

categorical approach applies even in the context of determining 

whether a concurrently-charged predicate offense is a "crime of 

violence" under§ 924(c). United States v. Amparo, 68 F.3d 1222, 

1224-26 (9th Cir. 1995). See also Piccolo, 441 F.3d at 1086. 

Thus, this Court must apply the categorical analysis (including, 

if applicable, the modified categorical approach) when 

determining whether § 372 categorically qualifies as a "crime of 

violence" under either the force clause or the residual clause of 

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§ 924 (c) (3). 

II. The Force Clause 

As noted, the force clause, 18 U.S. C. § 924 (c) (3) (A), 

defines a "crime of violence" to include "an offense that is a 

felony" and that "has as an element the use, attempted use, or 

threatened use of physical force against the person or property 

of another." 18 U.S.C. § 372, in turn, prohibits "conspir[ing] 

to prevent, by force, intimidation, or threat" a federal official 

from discharging the duties of their office. 2 

The plain language of Section 372 "criminalize[s] 'a broader 

swath of conduct'" (Dominguez-Maroyoqui, 748 F.3d at 920 (quoting 

Descamps, 133 S. Ct. at 2281)) than the definition of "crime of 

violence" under the force clause, 18 U.S.C. § 924 (c) (3) (A), 

because a "threat" does not always implicate the "threatened use 

of physical force against the person or property of another." 

For example, because the express terms of § 372 do not limit a 

"threat" to the threat of "physical force against the person or 

property of another," a "threat" under§ 372 could be a threat to 

blackmail a federal officer for the purpose of preventing the 

officer from discharging his or her duties, which is a kind of 

2 Although § 372 outlines four separate objects of the 

conspiracy that are prohibited (see United States v. Demott, No. 

05-CR-0073, 2005 WL 2314134 (N.D. N.Y. Sept. 22, 2005)), the only 

object named in Count One of the Superseding Indictment is to 

prevent officers of the United States "from discharging the 

duties of their office" "by force, intimidation, and threats." 

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threat that does not necessarily require as an element the 

"threatened use of physical force." 3 See 18 U.S.C. 

§ 924 (c) (3) (A) Nevertheless, a "threat" under § 372 must be 

illegitimate. See United States v. Fulbright, 105 F.3d 443, 452 

(9th Cir. 1997). Moreover, the Court notes the word 

"intimidation" may also encompass conduct that does not present a 

threat of physical force because "intimidation" could, for 

example, apply to threats of nonviolent harm to property. See 

United States v. Cassel, 408 F.3d 622, 636 (9th Cir. 2005) ("We 

conclude that 'intimidation' under 18 U.S.C. § 1860 requires the 

threat of harm inflicted by the defendant upon the victim's 

person or property."). 

The Court, therefore, concludes § 372 criminalizes a 

"broader swath of conduct" than the definition of "crime of 

violence" in the force clause, and, consequently, § 372 is not a 

categorical match to the force clause. See Dominguez-Maroyoqui, 

748 F.3d at 920. 

In addition, the Court concludes it may not apply the 

3 In its Order (#650) Regarding Defendants' Motions to 

Dismiss Count One for Vagueness and Overbreadth, the Court 

narrowly construed a "threat" under § 372 to be limited to "true 

threats" as well as nonviolent threats such as blackmail and 

extortion that are not protected by the First Amendment. When 

applying the categorical approach, however, the Court is not 

permitted to construe a statute to narrow the sweep of a "broader 

swath of conduct" in order to find a match to the§ 924(c) (3) 

definition of "crime of violence." 

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modified categorical approach to determine whether § 372 

qualifies as a "crime of violence" under § 924 (c) (3) (A) because 

§ 372 is not divisible as to whether the object of the conspiracy 

was accomplished by "force, intimidation, or threat." Indeed, 

the statutory text makes clear that "force, intimidation, or 

threat" are three means by which the conspiracy to prevent 

federal officials from discharging the duties of their office may 

be accomplished. See DeMott, 2005 WL 2314134, at *1-*2. 

Accordingly, the Court cannot employ the modified categorical 

analysis to determine whether § 372 qualifies as a "crime of 

violence" under 18 U.S.C. § 924 (c) (3) (A). 

Applying the categorical approach on this record, therefore, 

the Court concludes § 372 is not a "crime of violence" as defined 

in the force clause of 18 U.S.C. § 924(c) (3) (A). 

III. The Residual Clause 

Section 372 may, nonetheless, constitute a "crime of 

violence" within the meaning of § 924 (c) (3) if § 372 is a 

categorical match with the residual clause of § 924 (c) (3) (B) 

Rather than contend § 372 does not qualify as a "crime of 

violence" under the residual clause, however, Defendants instead 

argue the residual clause of § 924 (c) (3) (B) is void because it is 

unconstitutionally vague, and, therefore, the government may not 

rely on the residual clause definition to qualify § 372 as a 

"crime of violence." As noted, the residual clause defines a 

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"crime of violence" as an "an offense that is a felony" and "that 

by its nature, involves a substantial risk that physical force 

against the person or property of another may be used in the 

course of committing the offense." 18 U.S.C. § 924(c) (3) (B). 

Defendants primarily rely on United States v. Johnson, 135 

S. Ct. 2551 (2015), to support their argument that the residual 

clause of § 924 (c) (3) (B) is void for vagueness. In Johnson the 

Supreme Court addressed whether the "residual clause" of the 

Armed Career Criminal Act (ACCA) was void for vagueness. The 

ACCA defined "violent felony" as "any crime punishable by 

imprisonment for a term exceeding one year . . that . is 

burglary, arson, or extortion, involves use of explosives, or 

otherwise involves conduct that presents a serious potential of 

physical injury to another." 18 U.S.C. § 924(e) (2) (B) (ii) 

(emphasis added). The closing clause of the definition 

(italicized above) was known as the "residual clause." Johnson, 

135 S. Ct. at 2555-56. 

The Johnson Court explained that use of the categorical 

approach when determining whether a predicate offense fits within 

the ACCA's residual clause requires a court to "picture the kind 

of conduct that the crime involves in 'the ordinary case,' and to 

judge whether that abstraction presents a serious potential risk 

of physical injury." Id. at 2557 (quoting James v. United 

States, 550 U.S. 192, 208 (2007)). 

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The Court then found "two features of the residual clause 

conspire to make it unconstitutionally vague." Johnson, 135 S. 

Ct. at 2557. First, the Court determined "the residual clause 

leaves grave uncertainty about how to estimate the risk posed by 

a crime" because the court performing that analysis "ties the 

judicial assessment of risk to a judicially imagined 'ordinary 

case' of a crime, not to real-world facts or statutory elements." 

Id. 

Second, the Court reasoned the ACCA residual clause "leaves 

uncertainty about how much risk it takes for a crime to qualify 

as a violent felony" because the court making that assessment 

must apply "an imprecise 'serious potential risk' standard" to a 

"judge-imagined abstraction" as a result of the "ordinary case" 

analysis. Id. at 2558. The Court found the "serious potential 

risk" standard to be especially unclear because the four 

enumerated crimes that the ACCA provided as examples (burglary, 

arson, extortion, and crimes involving the use of explosives) 

"are 'far from clear in respect to the degree of risk each 

poses.'" Id. (quoting Begay v. United States, 553 U.S. 137, 143 

(2008)). Accordingly, the Court reasoned: "By combining 

indeterminacy about how to measure the risk posed by a crime with 

indeterminacy about how much risk it takes for the crime to 

qualify as a violent felony, the residual clause produces more 

unpredictability and arbitrariness than the Due Process Clause 

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tolerates." Johnson, 135 S. Ct. at 2558. 

In addition to evaluating the vagueness of the statute on 

its face, the Court in Johnson also noted its own "repeated 

attempts and repeated failures to craft a principled and 

objective standard out of the residual clause confirm its 

hopeless indeterminacy" and that lower courts had also struggled 

with how to apply the residual clause in the ACCA. Id. at 2558, 

2560-61. Ultimately the Court concluded "[e]ach of the 

uncertainties in the residual clause may be tolerable in 

isolation, but 'their sum makes a task for us which at best could 

be only guesswork.'" Id. at 2560. 

Defendants contend the residual clause of§ 924(c) (3) (B) is 

materially indistinguishable from the ACCA residual clause that 

the Supreme Court found void for vagueness in Johnson. Moreover, 

Defendants point out that since Johnson the Ninth Circuit has 

held another statute, 18 U.S.C. § 16(b), incorporated into the 

Immigration and Nationality Act, 8 U.S.C. § llOl(a) (43) (F), is 

also void for vagueness on similar grounds. Dimaya v. Lynch, 803 

F.3d 1110 (9th Cir. 2015). 

Section 16(b) defines a "crime of violence" as "any other 

offense that is a felony and that, by its nature, involves a 

substantial risk that physical force against the person or 

property of another may be used in the course of committing the 

offense." 18 U.S.C. § 16(b). After explaining that § 16(b) 

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"requires courts to 'inquire whether the conduct encompassed by 

the elements of the offense, in the ordinary case, presents' a 

substantial risk of force," the Ninth Circuit found the same two 

considerations that rendered the ACCA residual clause 

unconstitutionally vague also mandated the invalidation of 

§ 16(b). Dimaya, 803 F.3d at 1116-17 (quoting Delgado-Hernandez 

v. Holder, 697 F.3d 1125, 1128 (9th Cir. 2012)). Defendants, 

therefore, contend the residual clause of § 924 (c) (3) (B) is void 

for vagueness because it is materially indistinguishable from 

§ 16 (b) . 

On the other hand, the government emphasizes the Dimaya 

court expressly declined to "reach the constitutionality of 

applications of 18 U.S.C. § 16(b) outside of 8 U.S.C. 

§ 1101 (a) (43) (F} or to cast any doubt on the constitutionality of 

18 U.S.C. § 16(a)'s definition of a crime of violence." Dimaya, 

803 F.3d at 1120 n.17. In addition, the government asserts the 

residual clause of§ 924(c) is distinguishable from the ACCA 

residual clause that the Supreme Court invalidated in Johnson 

because§ 924(c) (3) (B) lacks the list of enumerated offenses that 

contributed to the vagueness of the ACCA residual clause, does 

not require a court to look beyond the elements of the predicate 

offense, and does not carry with it the same history of "repeated 

attempts and repeated failures to craft a principled and 

objective standard" as the ACCA residual clause. See Johnson, 

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135 S. Ct. at 2558. 

Nevertheless, the Court notes many of the grounds that the 

government relies on to distinguish§ 924(c) (3) (B) from the ACCA 

residual clause were considered and rejected by the Ninth Circuit 

in Dimaya. See 803 F.3d at 1118-19. Moreover, following Johnson 

and Dimaya, several district courts within the Ninth Circuit have 

concluded§ 924(c) (3) (B) is unconstitutionally vague. See United 

States v. Baires-Reyes, No. 15-cr-00122-EMC-2, 2016 WL 3163049, 

at *3-*5 (N.D. Cal. June 7, 2016) (finding the reasoning of Dimaya 

applies to the residual clause of § 924 (c) (3) (B) and, 

accordingly, finding § 924 (c) (3) (B) void for vagueness); United 

States v. Lattanaphom, No. 2:99-00433 WBS, 2016 WL 393545, at 

*3-*6 (E.D. Cal. Feb. 2, 2016); United States v. Bell, No. 15-cr00258-WHO, 2016 WL 344749, at *13 (N.D. Cal. Jan. 28, 2016). 

Although the government correctly points out that the Sixth 

Circuit in United States v. Taylor concluded the residual clause 

of§ 924(c) (3) (B) was not unconstitutionally vague in light of 

Johnson, the Sixth Circuit did so only after acknowledging 

"§ 16 (b) appears identical to § 924 (c) (3) (B) in all material 

respects" and only after expressly declining to follow the Ninth 

Circuit's reasoning in Dimaya. 814 F.3d 340, 379 (6th Cir. 

2016) . 

Unlike the Sixth Circuit in Taylor, this Court is not 

empowered to decline to follow Dimaya. As the Taylor court 

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noted, "§ 16 (b) appears identical to § 924 (c) (3) (B) in all 

material respects." Id. Accordingly, because the Court is bound 

by Dimaya, the Court must conclude§ 924(c) (3) (B) is void for 

vagueness. As a result, the Court cannot rely on the residual 

clause in § 924 (c) (3) (B) to conclude that § 372 is a crime of 

violence. 

For these reasons, the Court concludes on this record that 

§ 372 is not a crime of violence within the meaning of 

§ 924(c) (3), and, therefore, Count Three must be dismissed. 

CONCLUSION 

For these reasons, the Court GRANTS Defendants' Motion 

(#465) to Dismiss and DISMISSES Count Three of the Superseding 

Indictment. 

IT IS SO ORDERED. 

DATED this 10th day of June, 2016. 

ANNA J. BROWN 

United States District Judge 

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