Lisa Hay

Federal Public Defender

Rich Federico

Assistant Federal Public Defender

101 S.W. Main Street, Suite 1700

Portland, Oregon 97204

(503) 326-2123 Telephone

(503) 326-5524 Facsimile

Lisa_Hay@fd.org

Rich_Federico@fd.org

Attorneys for Defendant Ryan Payne

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PORTLAND DIVISION

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.

Case No. 3:16-cr-00051-BR

DEFENDANTS’ MEMORANDUM 

IN SUPPORT OF ISSUING 

SUMMONS TO JURORS FROM 

THE ENTIRE DISTRICT OF 

OREGON

PAGE 1. DEFENDANTS’ MEMORANDUM IN SUPPORT OF ISSUING SUMMONS TO JURORS FROM 

THE ENTIRE DISTRICT OF OREGON

Case 3:16-cr-00051-BR Document 547 Filed 05/11/16 Page 1 of 11
Responsive to a directive of the Court, in a Joint Letter dated April 27, 2016, the defendants 

set forth their position that the Court’s Jury Administrator should issue summonses to jurors 

outside the Portland Division.1 At the Status Conference on May 4, 2016, the Court directed

defendants to submit a written brief on this issue to support their position.2 To ensure a fair cross 

section of the community of a fair and impartial jury is empaneled to hear the case, the defendants 

renew their request that jurors from the entire District of Oregon be issued summons.

REQUESTED RELIEF: There is not unanimity amongst the defendants regarding the 

relief sought. However, the following represents the three options the defendants collectively 

propose to the Court:

(A) A majority of the defendants respectfully request the Court order the Jury 

Administrator to issue summonses to prospective jurors residing throughout the entire District of 

Oregon, equally from each jury division (Eugene, Medford, Pendleton, and Portland). This would 

result in 375 jury summonses being issued to jurors form each division; 

(B) Several defendants respectfully renew the request made at the May 4th Status 

Conference that the Jury Administrator issues summonses only to prospective jurors residing in 

the Pendleton Division. If there are insufficient numbers of qualified jurors in the Pendleton 

Division, that the Court exhaust that list prior to issuing summonses to jurors from the other three 

divisions, equally; or

1 Defendants hereby incorporate the arguments set forth in the Joint Letter previously submitted.

2 The latest Court Order (Doc. 523) discusses this issue but did not reaffirm the Court’s directive 

stated at the hearing for defendants to file this memorandum.

PAGE 2. DEFENDANTS’ MEMORANDUM IN SUPPORT OF ISSUING SUMMONS TO JURORS FROM 

THE ENTIRE DISTRICT OF OREGON

 

Case 3:16-cr-00051-BR Document 547 Filed 05/11/16 Page 2 of 11
(C) All defendants concur in a request that at a minimum, and in the alternative, the 

Court order the Jury Administrator to issue summonses to prospective jurors proportionately to 

the size of the Master Jury Wheel for each division, in accordance with the District of Oregon’s 

Jury Management Plan § 2.02. 

CERTIFICATION OF CONFERRAL: Undersigned counsel certifies that he conferred 

with Assistant United States Attorney Ethan Knight regarding the motion. The government 

opposes the requested the relief. As stated in the Joint Letter of April 27, 2016, consistent with 

district practice, and because of the absence of any controlling legal authority to the contrary, it is 

the government's position that jurors outside the Portland Division should not receive summonses. 

The government will separately brief substantive issues regarding issues raised by defendants' 

memorandum at the Court's request.

I. The Law Provides for Trial Before a Fair Cross Section of the Community and

This Should Include a Jury Pool Drawn from the Entire District of Oregon.

“[T]he American concept of the jury trial contemplates a jury drawn from a fair cross 

section of the community” as “an essential component of the Sixth Amendment right to a jury 

trial.” Taylor v. Louisiana, 419 U.S. 522, 527-28 (1975). The impartial jury must be drawn from 

“the State and district wherein the crime shall have been committed, which district shall have been 

previously ascertained by law.” U.S. Const. amend. VI. 

The Sixth Amendment imposes a geographic limitation on the prosecution of crimes, and 

the origins of the geographic limitation are found in English common law. For example, the right 

to be tried by a jury from a particular geographical region, or vicinage, came in part from the 

practice established in England by the early 1600's, and in part as a reaction to the efforts of the 

English Crown during the 1760's to bring colonists to London in order to try them for treason. See 

PAGE 3. DEFENDANTS’ MEMORANDUM IN SUPPORT OF ISSUING SUMMONS TO JURORS FROM 

THE ENTIRE DISTRICT OF OREGON

Case 3:16-cr-00051-BR Document 547 Filed 05/11/16 Page 3 of 11
Zicarelli v. Gray, 543 F.2d 466, 468 (3d Cir. 1976). Vicinage “means neighborhood, and ‘vicinage 

of the jury’ meant jury of the neighborhood or, in medieval England, jury of the county.” Williams 

v. Florida, 399 U.S. 78, 94 n. 35 (1970). The original version of the Sixth Amendment drafted by 

James Madison and introduced in the House of Representatives incorporated the term “vicinage,” 

but the term does not appear in the final version of the Sixth Amendment. See id. at 93 (“pending 

and after the adoption of the Constitution, fears were expressed that Article III's provision failed 

to preserve the common-law right to be tried by a ‘jury of the vicinage.’”). 

The modern judicial district is borne from statute. The Jury Selection and Service Act of 

1968 specifically provides for splitting a district into divisions and using only one division's jury 

wheel for petit juries: “[A]ll litigants in Federal court entitled to trial by jury shall have the right 

to grand and petit juries selected at random from a fair cross section of the community in the district 

or division wherein the court convenes.” 28 U.S.C. § 1861.

Although a petit jury may be drawn constitutionally from only one division and not the 

whole district, see United States v. Herbert, 698 F.2d 981, 984 (9th Cir. 1983) (citing Ruthenberg 

v. United States, 245 U.S. 480 (1918)), nothing precludes the court from drawing jurors from the 

district when the unique circumstances of the case and fundamental fairness require it.3

 The 

language of the statute (“fair cross section of the community in the district or division”) endorses 

the defendants’ request, as does the District of Oregon’s Jury Management Plan § 1.04 (“It is the 

policy of the court that all litigants in this Court, entitled to trial by jury, shall have the right to 

3 Defendants acknowledge that three Circuits have held that there is no right to a trial held in a 

particular division, even the one where the crime occurred. See, e.g., Zicarelli, 543 F.2d at 479; 

United States v. Mase, 556 F.2d 671, 675 (2d Cir.1977), cert. denied, 435 U.S. 916, (1978); United 

States v. James, 528 F.2d 999, 1021 (5th Cir.1976), cert. denied, 429 U.S. 959, (1976). The 

defendants did not find a 9th Circuit case holding the same. 

PAGE 4. DEFENDANTS’ MEMORANDUM IN SUPPORT OF ISSUING SUMMONS TO JURORS FROM 

THE ENTIRE DISTRICT OF OREGON

 

Case 3:16-cr-00051-BR Document 547 Filed 05/11/16 Page 4 of 11
grand and petit juries selected at random from a fair cross section of the community in the district 

or division wherein the Court convenes.”). 

Finally, Fed. R. Crim P. 18 contemplates several factors regarding the place of trial 

(convenience of the defendant, any victim, and the witnesses), but it is otherwise silent regarding 

the places from which prospective jurors may be drawn. Thus, there is no legal impediment to 

prevent the Court from issuing summonses to prospective jurors from the entire District of Oregon. 

While the defendants acknowledge that there is no controlling authority that mandates it, there is 

no alternative mechanism in this case that will likely ensure the defendants are tried before a jury 

representing a fair cross section of the community.

II. A Jury Pool Drawn Equally from the Entire District of Oregon will Ensure 

Fairness and Avoid the Appearance of Government Venue Shopping Under 

the Unique Facts and Circumstances of this Case. 

This case has received substantial pretrial publicity and is politically charged. Hardly a 

day passes that a media story is not published regarding some aspect of this case – the alleged 

underlying events, the issues raised by the events, court proceedings, stories about individual 

defendants, etc. It is the defendants’ expectation that 100% of the prospective jurors will have 

some degree of familiarity with the case due to pretrial press coverage which has saturated the 

community. Under the unique facts and circumstances of this case, opening the prospective jury 

pool to those outside of the Portland Division will greatly increase the chances of seating a fair 

and impartial jury.

Neither the defendants, potential witnesses, nor the alleged underlying events have any 

connection to the Portland Division. All events are alleged to have occurred at either the Malheur 

National Wildlife Refuge or in Burns, Oregon, which are located within Harney County, Oregon. 

PAGE 5. DEFENDANTS’ MEMORANDUM IN SUPPORT OF ISSUING SUMMONS TO JURORS FROM 

THE ENTIRE DISTRICT OF OREGON

Case 3:16-cr-00051-BR Document 547 Filed 05/11/16 Page 5 of 11
Harney County falls under the “Pendleton Jury Management Division.” See Jury Management 

Plan § 1.07(b). 

The question of whether to issue summonses to jurors from outside the Portland Division 

is inextricably linked to the question of venue. The government initiates criminal prosecutions 

and, thus, has the first crack at selecting the venue. See United States v. Salinas, 373 F.3d 161, 

163 (1st Cir. 2014) (citing United States v. Pace, 314 F.3d 344, 349 (9th Cir. 2002)). “The purpose 

of limiting criminal prosecutions to ‘a district in which the offense was committed’ is to provide a 

‘safety net, which ensures that a criminal defendant cannot be tried in a distant, remote, or 

unfriendly forum solely at the prosecutor's whim.’” United States v. Bravo-Fernandez, 756 F. 

Supp. 2d 184, 206 (D.P.R. 2010) (quoting Salinas, 373 F.3d at 164).

It is unknown why the government decided to bring the defendants to Portland and initiate 

prosecution in the venue of the Portland Division. The decision may have been based upon 

logistical reasons of ensuring facilities and resources are sufficient for a trial of this size and 

magnitude. The defendants do not concede this point, especially given the widely divergent 

demographics and political views held by persons in different areas of the state. Although there is 

no sitting grand jury drawn exclusively from the Pendleton Division (where jurors are added to 

grand juries empaneled in the Portland Division), there are grand juries in both Eugene and 

Medford, as ordered by the Chief Judge of the District pursuant to Jury Management Plan § 4.07.

4

 

Given the closer proximity between the Malheur National Wildlife Refuge and the United States 

District Courts in Eugene and Medford than between the Refuge and Portland, the decision 

certainly wasn’t made based upon geography alone. Regardless, the defendants have no right to 

4 This fact was provided by the Jury Administrator for the District or Oregon.

PAGE 6. DEFENDANTS’ MEMORANDUM IN SUPPORT OF ISSUING SUMMONS TO JURORS FROM 

THE ENTIRE DISTRICT OF OREGON

 

Case 3:16-cr-00051-BR Document 547 Filed 05/11/16 Page 6 of 11
be present at a grand jury proceeding, so the location of the grand jury is not dispositive to the situs

of the ultimate venue of prosecution. See Fed. R. Crim. P. 6(d). 

As of the date of filing, the defendants are unable to provide the Court with the data 

typically used to support a motion for a change of venue, such as a media analysis of the publicity 

surrounding the case and/or a community attitude survey of jury-eligible residents. Funding to 

produce this data remains pending and is the subject of a separate filing before the court (Doc. 

526).5 However, the defendants are not currently asking the Court for a change of venue. Rather, 

the defendants are seeking to mitigate against the need for a venue change by ensuring a jury may 

be empaneled that may “lay aside [their] impression or opinion and render a verdict based on the 

evidence presented in court.” Hayes v. Ayers, 632 F.3d 500, 511 (9th Cir. 2011) (quoting Irvin v. 

Dowd, 366 U.S. 717, 723 (1961)). 

While it is unknown, of course, whether the defendants will be able to receive a fair trial 

anywhere in the District, issuing summonses to prospective jurors equally from each division will 

at least eliminate the appearance that in choosing the venue of prosecution, the government 

purposefully sought a division that it considered to be a friendlier forum to prosecute its case. In 

other words, it will avoid the appearance of the harm that the common law vicinage requirement 

sought to prohibit, as illustrated by the practice of the English Crown bringing colonists to London 

to be tried for treason. 

5 Until the venue analysis is funded and completed the defendants are unable to accurately detect 

how the substantial pretrial publicity may be influencing or causing bias to prospective jurors. 

Defendants respectfully reserve the right to modify their position on venue if the data is collected 

and conclusions can be drawn regarding potential bias.

PAGE 7. DEFENDANTS’ MEMORANDUM IN SUPPORT OF ISSUING SUMMONS TO JURORS FROM 

THE ENTIRE DISTRICT OF OREGON

 

Case 3:16-cr-00051-BR Document 547 Filed 05/11/16 Page 7 of 11
In the District of Oregon, county voter registration lists represent a fair cross section of the 

citizens residing within the District. See Jury Management Plan § 2.01. Because all of the jurors 

in this case will be registered voters, voter registration is the relevant data from which the 

defendants can demonstrate the differences between the four divisions within the District. Again, 

as funding requests remain pending, the defendants are unable to produce to the Court an attitudinal 

survey from registered voters from which the parties can extrapolate firm conclusions. However, 

that does not mean the defendants and the Court are left only to speculate, as there is relevant data 

available that requires closer scrutiny. 

In modern America, the distinction between “liberals” and “conservatives” is generally 

considered to be a difference between the two major political parties – Democrats as “liberals” and 

Republicans as “conservatives.” A political difference between the two parties also extends to 

their respective ideologies regarding the appropriate size and power of the federal government. 

That distinction was at the heart of the protest in this case that the government has charged as 

crimes – disputes over federal ownership and management of public lands. Additionally, this case 

is uniquely political and will require the finder of fact to evaluate and weigh evidence regarding 

whether alleged conduct is constitutionally protected speech, assembly, press, petition, and right 

to bear arms. 

PAGE 8. DEFENDANTS’ MEMORANDUM IN SUPPORT OF ISSUING SUMMONS TO JURORS FROM 

THE ENTIRE DISTRICT OF OREGON

Case 3:16-cr-00051-BR Document 547 Filed 05/11/16 Page 8 of 11
According to the Oregon Secretary of State’s Office, the following charts represent the 

differences in voter registration in December 20156 by political party in the four divisions7 within 

the District of Oregon8:

Total # of 

Voters

Democrats Republicans Independents Not 

Available

Other

Eugene 691,129 35.94% 32.62% 5.46% 23.25% 2.73%

Medford 219,599 28.97% 39.52% 6.2% 22.73% 2.58%

Pendleton 100,520 23.96% 45.09% 5.16% 26.63% .84%

Portland 1,158,110 42.24% 24.65% 4.65% 25.28% 3.18%

TOTALS 2,169,248 38.04% 29.62% 5.09% 24.31% 2.94%

The differences between the divisions, and the Portland Division as compared to the other 

three divisions, is significant. For example, in raw numbers there are 203,711 more Democrats 

(489,185) than Republicans (285,474) in the Portland Division. By comparison, in the Pendleton 

Division there are 21,240 more Republicans (45,324) than Democrats (24,084). Thus, a simplistic 

review of voter registration data leads to the conclusion that a jury pool from the Portland Division 

will include more jurors registered to a more “liberal” political party than the Pendleton Division, 

where all of the charged events are alleged to have occurred. To avoid this discrepancy and to 

ensure that justice may be done, the Court should issue summonses to prospective jurors from 

6 This date was selected because according to the Jury Administrator it was after the last Master 

Jury Wheels were created in the District. 

7 Eugene Division (Benton, Coos, Deschutes, Douglas, Lane, Lincoln, Linn, Marion); Medford 

Division (Curry, Jackson, Josephine, Klamath, Lake); Pendleton Division (Baker, Crook, 

Gilliam, Grant, Harney, Malheur, Morrow, Sherman, Umatilla, Union, Wallowa, Wheeler); 

Portland Division (Clackamas, Clatsop, Columbia, Hood River, Jefferson, Multnomah, Polk, 

Tillamook, Wasco, Washington, Yamhill).

8 See Appendix I; http://sos.oregon.gov/elections/Documents/registration/dec15.pdf. 

PAGE 9. DEFENDANTS’ MEMORANDUM IN SUPPORT OF ISSUING SUMMONS TO JURORS FROM 

THE ENTIRE DISTRICT OF OREGON

 

Case 3:16-cr-00051-BR Document 547 Filed 05/11/16 Page 9 of 11
beyond the Portland Division. As noted, there are several proposals put forth by the defendants as 

to how the Court could direct the Jury Administrator to issue summonses. All of the proposals 

would seek to level the ideological playing field and seek to ensure that a fair and impartial jury 

can be empaneled, as required based upon the unique facts and circumstances of this case.

In the Joint Letter, the parties agreed with the Court’s proposal that the Jury Administrator 

issue the initial summonses to 1,500 prospective jurors. Should the Court issue 1,500 summons, 

a majority of the defendants respectfully request that it be done equally for each division, or that 

375 summonses issued to jurors from each division. Several defendants renew the request that the 

Jury Administrator first exhaust the list of qualified jurors from the Pendleton Division prior to 

issuing summonses to prospective jurors in the other divisions. At a minimum, all defendants 

respectfully request as alternative relief that the Court issue summonses proportionately to 

prospective jurors from each division.

Lastly, as stated, this issue relates to the larger question of venue. The defendants have 

already alerted the Court of their desire to research the validity of a change of venue motion. If 

seating a fair and impartial jury becomes an impossibility based upon the jury pool harboring 

partiality or hostility towards the defendants that cannot be set aside, summonsing jurors from the 

entire District will greatly inform a change of venue motion. Both the Court and the parties will 

be in a better position to know what venue options might constitute constitutionally permissible 

alternatives. In other words, defendants will be in a position to know whether seeking a venue 

change to another Division within the District of Oregon is or is not a viable option.

PAGE 10. DEFENDANTS’ MEMORANDUM IN SUPPORT OF ISSUING SUMMONS TO JURORS FROM 

THE ENTIRE DISTRICT OF OREGON

Case 3:16-cr-00051-BR Document 547 Filed 05/11/16 Page 10 of 11
Respectfully submitted this 11th day of May, 2016.

___________________________

Rich Federico

Assistant Federal Public Defender

Attorney for Mr. Payne

PAGE 11. DEFENDANTS’ MEMORANDUM IN SUPPORT OF ISSUING SUMMONS TO JURORS FROM 

THE ENTIRE DISTRICT OF OREGON

Case 3:16-cr-00051-BR Document 547 Filed 05/11/16 Page 11 of 11