IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

UNITED STATES OF AMERICA, )

) Case No. 3:16-CR-00051-BR 

 Plaintiff, ) 

) 

v. ) October 14, 2016 

) 

AMMON BUNDY (1), ) 

RYAN BUNDY (5), ) 

SHAWNA COX (7), ) 

DAVID LEE FRY (13), ) 

JEFF WAYNE BANTA (14), ) 

KENNETH MEDENBACH (16), ) 

NEIL WAMPLER (20), ) 

 ) 

 Defendants. ) 

__________________________________) Portland, Oregon 

TRANSCRIPT OF PROCEEDINGS

(Day 22 - Jury Trial - Volume 1) 

BEFORE THE HONORABLE ANNA J. BROWN, DISTRICT JUDGE 

COURT REPORTER: AMANDA M. LeGORE 

 ORCSR, RDR, CRR, FCRR, OCE

 U.S. District Court 

 333 West Broadway, Suite 420 

 San Diego, CA 92101 

 amanda_legore@casd.uscourts.gov 

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 1 of 262
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APPEARANCES: 

FOR THE PLAINTIFF: GEOFFREY BARROW 

 CRAIG GABRIEL 

 ETHAN KNIGHT 

 Assistant U.S. Attorneys 

 U.S. Attorney's Office 

 1000 SW Third Avenue, Suite 600 

 Portland, OR 97204 

 (503)727-1000 

FOR DEFENDANT AMMON 

BUNDY: J. MORGAN PHILPOT 

 JM Philpot Law 

 1063 E. Alpine Drive 

 Alpine, UT 84004 

 (801)810-8369 

 MARCUS MUMFORD 

 Marcus R. Mumford, PC 

 405 S. Main Street, Suite 975 

 Salt Lake City, UT 84111 

 (801)428-2000 

 

FOR DEFENDANT RYAN 

BUNDY: RYAN BUNDY 

 Pro se 

 79400-065 

 LISA LUDWIG 

 Standby Counsel 

 811 SW Naito Parkway, Suite 500 

 Portland, OR 97204 

 (503)223-5570 

 ROGER ROOTS 

FOR DEFENDANT SHAWNA 

COX: TIFFANY HARRIS 

 (Standby Counsel) 

 121 SW Salmon Street, Suite 1420 

 Portland, OR 97204 

 (503)546-2927 

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 2 of 262
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APPEARANCES: (continuing) 

FOR DEFENDANT DAVID 

FRY: PER OLSON 

 Hoevet Olson Howes, PC 

 1000 SW Broadway, Suite 1500 

 Portland, OR 97205 

 (503)228-0497 

FOR DEFENDANT JEFF 

BANTA: ROBERT SALISBURY 

 330 South 1st Street 

 PO Box 1272 

 St. Helens, OR 97051 

 (503)397-9000 

FOR DEFENDANT KENNETH 

MEDENBACH: KENNETH MEDENBACH 

(not present) Pro Se 

 25795-086 

 MATTHEW SCHINDLER 

 Standby Counsel 

 501 4th Street, #324 

 Lake Oswego, OR 97034 

 (503)699-7333 

FOR DEFENDANT NEIL 

WAMPLER: LISA MAXFIELD 

 Pacific Northwest Law, LLP

 1420 World Trade Center 

 121 SW Salmon 

 Portland, OR 97204 

 (503)222-2661 

ALSO PRESENT: DAVID McDONALD 

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 3 of 262
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INDEX 

Witness Index 

FOR THE DEFENDANT: Direct Cross ReDirect ReCross

David Blanchard 55 57

David Fry 58 136 186 187

David Fry 146 192

David Fry 154

David Fry 156

David Fry 157

David Fry 171

Charles Snipes 196

Duane Schrock 201 229

Duane Schrock 232

Duane Schrock 233

Duane Schrock 235

Timothy Puckett 244 249 249

-oOo- 

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 4 of 262
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(October 14, 2016; 8:03 a.m.) 

P R O C E E D I N G S 

THE COURT: So let's go on the record, everyone.

I want to note Mr. Mumford's timely presence today.

Mr. Olson, you're going to start with Mr. Fry?

MR. OLSON: Yes, your Honor.

THE COURT: What's the current estimate now of your

direct, please?

MR. OLSON: 15 minutes.

THE COURT: Okay. And do other defenders intend to

examine Mr. Fry at any length?

I'm only interested in timing here.

MR. SALISBURY: I intend to, but not in any way --

THE COURT: Sure. Okay. Are there any issues at all

I need to preview with respect to issues?

MR. OLSON: No. We resolved the one issue.

THE COURT: Thank you.

And then, Ms. Maxfield.

MS. MAXFIELD: Yes, your Honor.

THE COURT: You filed a stipulation with respect to

Mr. Wampler's date of departure. Tell me when you want it

read, and I'll read it.

Is Agent Blanchard now lined up or not?

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MS. MAXFIELD: I hope so. I sent him an e-mail. But

I -- is -- Agent Blanchard said he would be available at what

time?

MS. PHILIPS: He's available in his office at 8:15

this morning.

THE COURT: Do you want to see if Mr. Olson will

yield, and let you put him on quickly at 9:00?

MS. MAXFIELD: Actually, I sent an e-mail, telling

him he would follow this witness but --

THE COURT: Follow Mr. Fry, or not?

MS. MAXFIELD: Yes. I just don't want to be

embarrassed again and have --

THE COURT: I know. That's why I was thinking if we

started with him, you could hook him up, have him on the line

when the jurors walk in the room.

How long is -- how long is Blanchard?

MS. MAXFIELD: Ten minutes, tops.

THE COURT: Mr. Olson, how do you feel about

deferring to Blanchard?

MR. OLSON: That's fine with me, your Honor.

THE COURT: Okay. So why don't you work with

Ms. Boyer, before we bring the jury in, to get Blanchard on the

line shortly before 9:00. And then we'll know for sure we've

got a good connection, and all of that, while they come in the

room. Okay? 

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Are there issues now, any more, with respect to

Blanchard? No.

And then you'll want the stipulation read. 

And then you have Mr. Snipes, too, or not?

MS. MAXFIELD: I believe Mr. Snipes is on his way.

THE COURT: Okay. So what issues do I need -- what

are -- what is there remaining to resolve before we go forward? 

Mr. Mumford?

MR. MUMFORD: I believe -- your Honor, I believe

there are two issues that we had lingering yesterday and that

are still unresolved.

The one issue is Mr. Puckett. See if we can't make

arrangements for him to testify remotely.

Let's talk about, first if we can, the issue of the

confidential informants. We met, conferred, couldn't come to

anything. We didn't get any information out of the Government

concerning who these folks are, or anything else. So I think

we're coming back to your Honor for a resolution of that. And

if your Honor wants me to, you know, go into that more, I can.

THE COURT: Yes, in just a moment.

The other issue I had on my list was the stipulation

with respect to Mr. Brownscombe, or not. Has that been

resolved?

MR. MUMFORD: I believe it has, your Honor. I don't

know if we've -- I don't know if we've finalized the language,

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 7 of 262
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but we've agreed in concept to it.

MR. BARROW: The witnesses have been released from

the subpoena, and we've agreed to stipulate as to the court --

as we've discussed in open court. So I don't know the language

is really at issue, either.

THE COURT: Write it out. It should be filed, just

like everything else eventually. But if you write it out, sign

off, I'll read it to the parties, and then you can make the

filing. 

So with respect to Mr. Puckett, I thought where we

left it off was I - over the Government's objection, I was not

going to permit him to testify by telephone.

When the parties agree that a witness may testify by

telephone, I'm not stepping in the way of that, like with Agent

Blanchard. So if Mr. Puckett can come personally, I've told

the defendants they can call him out of order, reserve resting

except as to him, and he can come Monday, if that's the issue.

MR. MUMFORD: I would like that -- leave to do that.

Also, your Honor, I believe -- was it possible that

we could get him by Skype? For example --

THE COURT: No.

MR. MUMFORD: Well, hold on for just a second.

THE COURT: I thought I was talking about the IT

capacity, here.

MR. MUMFORD: I think that your Honor said that if by

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 8 of 262
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Skype, then it has to be with another courthouse, and it takes

time in advance. The thought I had was maybe we could reach

out to the Pendleton courthouse today and see if he can go to

Pendleton on Monday.

THE COURT: Here's our Pendleton courthouse

situation. It's not staffed. We have a part-time magistrate

judge who uses the chambers there as needed. And when court is

scheduled, IT literally travels from Portland to Pendleton to

do that because it's not a full-time functioning courthouse.

It's possible that the Harney County courthouse might

have that, but it's on you to work with one of the IT people to

see if you can find a place for the witness to appear, wherever

he is, in a format that could be broadcast by video.

I assume the Government would accept the witness's

physical image in realtime by video with question and

answering, if that could be arranged.

MR. BARROW: Your Honor, we are reluctant to agree to

that for the reasons we set forth before.

THE COURT: Then let's just wait and see what 

Mr. Mumford and his colleagues can work out.

And then I -- I don't want to take a record on that

which is speculative.

If there's a proposal, he's available at -- in a

manner in which he can -- his -- his realtime testimony can be

viewed by the jury, such that I can make an assessment about

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 9 of 262
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whether the Government's objection has a basis or not, then --

then we'll talk about what real -- what's real.

But the defendants have leave to rest today, subject

only to calling Mr. Puckett in -- in a manner that addresses

allowing the jury to evaluate his credibility.

And am I right, Mr. Barrow? Was he the witness who

had some convictions about which you were concerned or not?

MR. BARROW: Yeah. Unlike Agent Blanchard, for

example, which is pretty much uncontested, Mr. Puckett has

prior convictions which we have concerns with. His testimony

is also directly contradicted by statements his father has

made, so that's why we think --

THE COURT: So you can bring his father, you know, if

you need to do that. If it comes down to that, this is what

disputed evidence comes down to.

MR. BARROW: I understand.

THE COURT: So Puckett will remain pending.

You've got a stipulation coming to me about

Brownscombe and Ms. Moawad.

And then let's go to this motion to compel issue.

What I would like you to do, Mr. Mumford, is to

restate concisely what it is you're seeking, the authority for

it. Then I'll hear the Government's response. I'll take a

look, if there are cases you need me to be refreshed on. And

I'll get that resolved.

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MR. MUMFORD: Thank you, your Honor.

Hold on.

THE COURT: If you need a few minutes, we can sit at

ease. It looks like we have got time to do that. So let me

know when you're ready.

(Pause.)

MR. MUMFORD: I'm prepared, your Honor.

THE COURT: Go ahead.

MR. MUMFORD: Thank you.

The (pause referring) -- and just -- just -- your

Honor, in the meantime, it looks like Mr. Puckett -- there may

be a dispute that we have as to whether Mr. Puckett was

actually convicted.

THE COURT: That's why I raised it. I want you to be

able to work out, before he testifies, the legitimacy of these

conviction issues, so that -- the Government needs to be

prepared with respect to Mr. Puckett for the traditional

mechanism of proving a conviction, certified copies, and the

like.

MR. BARROW: We will.

THE COURT: So if it's contested, there's a basis on

which the Court can rule.

MR. MUMFORD: So, your Honor, the -- the -- the issue

is -- is a disclosure of these confidential informants material

to our defense. And it is, your Honor, United States v.

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Barnes -- this is an Eighth Circuit case, but I understand

it's -- you know, it's stating a principle that general

acceptance is -- the disclosure will almost always be material

of a confidential informant involved here, holding that an

informant who witnessed -- witnesses the crime or participated

in it and the Government did not plan on using the informant as

a witness at trial, the failure to disclose it, the whereabouts

of the informant, who it is, and those kind of issues require a

reversal and remand. Your Honor, that's 486 F.2d 776. I

believe the pinpoint on that was 779.

And so, your Honor -- so here's what we're facing.

We're facing a situation where the Indictment here, your Honor,

charges -- charges these defendants -- and Mr. Ammon in

particular -- with knowingly and willfully conspiring and

agreeing with each other and with persons known and unknown.

And so that's -- and where at least one

co-conspirator performed one of the following overt acts in

furtherance of the conspiracy, the November 5th meeting,

recruited and encouraged other individuals, known and unknown,

in person and through social media to participate and assist in

the above-described conspiracy. Traveled to Harney County

between November and January 26th, 2016, to intimidate and

coerce the population of Harney. To effectuate the goals of

the conspiracy beginning on December 15th. Begin to brandish

and carry firearms throughout Harney County to effectuate the

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 12 of 262
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goals of the conspiracy. Occupy the refuge while using and

carrying firearms. Beginning January 2nd, brandishing and

carrying firearms on the premises of the refuge. And

preventing federal officials from performing their duties by

force, threat, and intimidation. Beginning January 2nd,

refused to leave the refuge. Beginning on January 22nd --

January 2nd, threatened violence against anyone who attempted

to remove them from the refuge.

So that's the broad outline of how the -- the -- the

this case was presented here.

THE COURT: Well, let me -- let me just stop you,

first, to say that you're reading from the Superseding

Indictment.

MR. MUMFORD: That's correct.

THE COURT: So I think it's more accurate to say

that's how the Indictment was returned.

When -- when the Government narrows proof at trial,

especially in a situation like this, where the Indictment is

not going to the jury, the real issue is what evidence has the

Government proffered in support of the elements of the offense.

MR. MUMFORD: That's right. Thank you. I was -- I

was just going there.

THE COURT: And let me just make another legal point

for the record. I apologize for interrupting. 

But this overt act question needs to be noted as a

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 13 of 262
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matter of law. For the charged Indictment, no overt act has to

be proved. It's -- this is one of those conspiracy statutes

that does not require proof of an overt act.

So the Government's -- the plain law, the

Government's alleging an overt act in the Indictment does not

require proof of one. The conspiracy is the agreement and not

the actual object of being accomplished.

So thank you for the -- letting me make that point at

this part of the record.

Go on, please.

MR. MUMFORD: Yeah. And so -- and so what we have

here, in opening argument -- the Government -- how the

Government presented their case in opening argument, they said

it's an illegal armed occupation. They said it was a

conspiracy of illegal activity that included setting armed

guards at entrances and a watchtower; converting employee

offices into personal residences; digging through government

records; using government computers, vehicles, and heavy

equipment; renaming the facility; possessing guns at the

refuge; possessing ammo at the refuge. They blocked entrances,

controlled who came and when, held property. Ultimately,

prevented the federal employees from carrying out their

official duties for 41 days.

They drove -- they drove out to remove a fence. They

took down Government cameras. And -- and they said -- they

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conclude in their opening argument, we're not prosecuting the

defendants for what they believe but we're punishing the

defendant for what they did.

And so then their presentation of evidence was, well,

there are all of these weapons at the refuge. And that your

Honor admitted all of that evidence as -- without knowledge of

where they came from, who brought them there, or -- or -- or

why. But your Honor said, well, we'll admit it as

circumstantial evidence of the conspiracy. And the intent that

Ammon Bundy and others, as manifest -- basically as manifest by

the collection -- collective actions of those coming to the

refuge.

So, your Honor -- and then they said the ammo -- the

ammo -- the refuge, the same thing. It was admitted as

circumstantial evidence of the conspiracy and it was

circumstantial evidence of the intent of Mr. Bundy and others,

is what the Court said. And by -- manifest by the collective

action of others.

So we're being prosecuted based on the collective

action here of others. And it includes -- those others include

probably 15 -- at least 15 confidential informants that were

working with the Government, reporting to them, reporting back.

They were -- it looks like they were involved in some

of the quote/unquote administrative meetings at the refuge.

They were -- we have one who was reporting that -- we

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don't know who it is, but it was a confidential informant who

was reporting on the removal of the -- of the -- of Government

cameras, here.

We've got -- and -- basically, we've got a situation

where -- as Ammon -- and Mr. Bundy testified that anyone could

attend the meetings and volunteer for things. And -- and so

we've got a situation where these people who show up at these

administrative meetings, or otherwise -- and there's sometimes

up to 40 people there, is what these confidential informants

are saying. All of those individuals are -- are,

quote/unquote, part of the collective action that is now being

imputed to these individuals as proof that they were entering

into a conspiracy.

Just yesterday, your Honor, one of the questions that

the Government asked our expert, Mr. Stephenson, was whether or

not it would make a difference in -- in how -- I mean, his

assessment of someone carrying a firearm was whether that

person was, quote, in a place he had no lawful right to be.

So I come back to, well, how do we know here -- the

jury's going to be asked this -- this question, right? The

Government's going to say, hey, you know there was a conspiracy

because of all of these actions here. We saw the photos, that

we see -- the guns that we see, and all of those things.

But, your Honor, in the middle of that there's a big

hole concerning Government -- the Government's confidential

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 16 of 262
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informants, who -- who -- who -- we don't know what they did

and how they contributed to it.

And so how can we then -- how can the Government say,

well, ignore that issue, where we're saying, well, hold on. We

should be allowed to use that and -- and -- and at least --

least figure out what that is so that we can then argue to the

jury, hey, that wasn't the action of Mr. Bundy. That was the

actions of confidential informants that were working with the

Government there.

And -- and so because it's -- this conspiracy is so

undefined, I think that's -- that's the -- I think that's the

problem that we're having with it. And I can see where the

Government's going to say, hey, it's undefined. So Mr. Mumford

can't say what confidential informant he needs. But -- but,

your Honor, they can't -- they can't create the problem and

then deprive me of -- of the solution there, is what I'm trying

to say.

Does that make sense?

THE COURT: Don't ask me to answer that one.

MR. MUMFORD: Okay.

THE COURT: What I would like you to do is to tell me

specifically what is the factual basis for the assertions

you're making that there are 15 unidentified informants, and

all of that. This is the first I've heard of this.

The -- and then I would like to address a timing

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concern, in light of what Mr. Barrow noted yesterday about the

timing and the disclosures. To the extent defendants were

concerned with getting and seeking an order to compel identity

of witnesses, this should have come long before today. Should

have come before the beginning of jury selection, never mind at

the point defendants are about to rest.

So I want to know what the factual underpinnings are

of your assertions.

This addresses matters that not in the record, that

I've not been exposed to. And you -- you should know I've made

a concerted effort not to be exposed to matter that isn't

presented by the parties here.

So I don't have any idea what you're talking about.

MR. MUMFORD: Again, thank you.

THE COURT: May he finish first, Mr.--

MR. MUMFORD: I was talking --

THE COURT: No, no. Mr. Ryan Bundy is standing. I'm

asking him. Can you -- I want Mr. Mumford to finish, and then

you can address it.

Go ahead, Mr. Mumford.

MR. MUMFORD: Yes, your Honor.

So there are -- I believe, your Honor -- in

discovery, there are files that are labeled CHS 01, 02, 03, and

so forth.

I will tell your Honor -- and these are the -- your

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Honor may recall, yesterday there was some reference to an

unredacted or redacted confidential human source reports where

in the instance of Ms. Linnell, I believe Mr. Olson was -- was

examining her based on a redacted confidential source report

where it turned out that the Government stands up and starts

questioning her about -- cross-examining her based on an

unredacted one, based on the unredacted -- I mean, the redacted

portions of that, your Honor. So that's a little bit different

problem, but it's a contributory problem to the one I'm having. 

So, your Honor, there are 15 of these files. Some of

them have as many as -- looks like, you know, 15 to 20 reports

from these sources. Some of them have as few as one or two.

The -- some of them start, your Honor -- I'll just

tell you, I'm surprised. One of them even starts before

November 2015, here. And was -- appeared that they were aware

of that one -- for example, that one October video of

Mr. Finicum that your Honor wouldn't let us get into evidence

there.

And so these reports, your Honor, they generally

don't redact the date of the contact between the confidential

informant and their Government handwork, I guess. But they're

redacted throughout. And what the Government said is that they

didn't redact mentions -- anything that would mention our

clients, these defendants.

Now, I asked them last night, well, what if -- what

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 19 of 262
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if they're just talking about an administrative meeting and

what went on there? And I couldn't -- I don't know the answer

to that. I don't know that they know the answer to that

because -- but that would be problematic because, as your Honor

knows, sometimes there will just be a meeting without

mentioning who was there, like my client or -- or other of the

defendants. And -- and if they're redacting that portion of

that -- and, again, we don't know what we don't know there, so

it presents an issue.

I also point out, your Honor, we asked -- we have

raised these questions throughout the case.

During the Government's case, I asked Agent Ronnie

Walker about how many informants, and I was objecting to, at

the time, based on scope -- and that was a couple of weeks ago.

I asked Agent Lapp about it. I asked Agent Luh about it.

THE COURT: Mr. Mumford, examining a witness at trial

is not the way one gets to information for a motion to compel.

If you had 15 confidential human source documents

before trial and you -- that were redacted -- is that the case?

You had 15 confidential human source documents in a redacted

form before trial? Is that what you're --

MR. MUMFORD: I don't know when I got them, your

Honor. And if your Honor is going to --

THE COURT: No, I'm just -- I'm making the point that

the last day of a defendant's case is too late, generally, when

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if you have the information and it's redacted and you -- you

have a need for it -- these are issues that I was working on

regularly with the parties up to the start of trial. 

I'll hear from you in a minute, Mr. Bundy, I need to

finish with Mumford -- Mr. Mumford.

DEFENDANT RYAN BUNDY: Has to do with this very

issue.

THE COURT: Mr. Bundy, you need to let me finish with

one party, and then you get to speak.

What I'm saying, Mr. Mumford, is I'm concerned. If

you thought there was information that was redacted that you

should have had access to, I don't know why it wasn't raised

until the motion was filed yesterday. That's a concern to me.

But I think -- and Mr. Barrow can confirm -- that

these --

Well, let me just ask Mr. Barrow some factual

questions, so I can get a little more foundation.

Are there only 15 so-called CHS documents?

MR. BARROW: There are 15 CHSs, more than one

document. So --

THE COURT: I'm sorry. So there are 15 confidential

human sources. You're representing that. That's all there

are?

MR. BARROW: Your Honor, let me be more detailed

about what happened.

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THE COURT: Okay.

MR. BARROW: When this case came about, we reached

out to the FBI for all source reporting that is in any way

connected with the activities at Malheur.

We then reviewed all of that and identified 15

sources, and we identified those 15 sources as individuals that

had direct contact with the occupiers at the refuge.

THE COURT: When you say "the occupiers," in light

Mr. Mumford's point as to who -- whose conduct might implicitly

being attributed to the defendant under a co-conspirator

statement or act theory, I want to know what you mean by 15 had

contact with the occupiers. Who do you mean when you say, "the

occupiers."

MR. BARROW: Anyone who was on the refuge during the

relevant time period.

THE COURT: All right. And how do you distinguish

these resources from being an occupier, in the first instance?

You're saying these are confidential human sources who had

contact with occupiers. Why don't you consider them an

occupier in the first instance?

MR. BARROW: The confidential source an occupier?

Why don't I consider that source an --

THE COURT: Right. I'm trying to figure out what is

a confidential human source who's present at the occupation or

not. I need some definitional framework about the terms you're

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using here in order to understand what you're talking about.

MR. BARROW: So, your Honor, if someone had

approached the FBI and offered to provide information to the

FBI and was then at the Malheur occupation or had direct

contact, say, through the phone with someone at the Malheur

occupation, that's what I'm referring to.

THE COURT: All right.

MR. BARROW: And then, just by way of chronology --

THE COURT: So these people, with whom your sources

had contact, include who, by name? The defendants? Or one or

more --

MR. BARROW: Any defendant. Any charged defendant.

That was an obvious one. And anyone else that was -- if they

had contact with someone at the refuge who was engaged in

criminal activity, that had reported back, that was also --

would be counted.

THE COURT: All right. So you have these 15 sources.

And then you provided all of the reports but in a redacted

form?

MR. BARROW: Correct. And then, just in terms of

timing, this was something the Court alluded to, we discussed

extensively. The parties sought the disclosure of this

information. It was, again, the subject of a status report

that was filed on June 14th of 2016, in which the Government

announced that it would turn over this information on July 1st

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of 2016. We did turn over the information on July 1st of 2016.

THE COURT: And when you say "the information," in

this context, you're -- you're saying the redacted CHS reports?

MR. BARROW: Correct.

THE COURT: All the records of which the Government

is aware that report what these 15 CHSs said, did, or whatever?

MR. BARROW: Correct.

THE COURT: Okay. All right. Go on.

In terms of redactions, these confidential human

sources, we now know -- from trial -- that some testifying

witnesses have been identified as, quote, informants.

Are -- are -- was Mr. McConnell a so-called

confidential human source in this context of discovery?

MR. BARROW: He's been identified in this -- in this

trial as a source, and his reports were turned over.

THE COURT: As part of the CHS?

MR. BARROW: Yes.

THE COURT: You're not being specific enough, and

that's why I'm asking. I was trying to figure out if you

turned over McConnell just generally or was he one of the 15?

MR. BARROW: As part of this process we're

discussing, yes.

THE COURT: And when you did so -- and then what

about Ms. Linnell? Is she one of the so-called confidential

human resources?

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MR. BARROW: Yes, your Honor. And her reports were

turned over as part of the same process.

THE COURT: All right. So there are 13 other

individuals whose identities have not been disclosed. Is that

right?

MR. BARROW: Correct.

THE COURT: Okay. That's what I'm trying to get at.

And I take it, Mr. Mumford, you're seeking the

disclosure of their identities?

MR. MUMFORD: Yes. Their identities, how much they

were paid, and the unredacted versions of their reports, your

Honor.

THE COURT: Okay. So let me just see one -- I want

to make one more -- I need to look at one more thing.

(Pause referring.)

THE COURT: Do you happen to have with you one of

these, just for illustration, for me to take a look at? A CHS

redacted report?

MR. MUMFORD: I just sent it to Mr. Breton. I

believe he can pull it up.

THE COURT: Okay.

MR. MUMFORD: Your Honor. This is one -- this is

probably the most extreme example. But your Honor will see the

issue that we're dealing with here.

THE COURT: So I'm looking at a page Bates marked

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0059525 that is effectively all redacted.

I need to see that document in an unredacted form, so

I can understand the arguments here.

Do you have that with you, or not?

MR. BARROW: I can go get it. I don't have it right

now.

THE COURT: So here's what I want to do on this

problem. 

The defendant, to prevail on a motion to compel this

kind of information, has to make a showing of the need for the

identity.

If there hasn't been enough information provided in

discovery from which the defendant can make that showing, then

there's a duty on the part of the Court to make an in camera

review of the material.

And so I'm going to need to see all CHS documents for

the 13 sources who are -- who have been referenced here,

because the other two have been identified and examined, and

the like. And I need that as soon as humanly possible, so that

I can review it, and we can take it up outside the presence of

the jury in an orderly way.

And then once I see that, Mr. Mumford, I'll take more

argument from you and Mr. Barrow.

I would like to hear from Mr. Bundy about the

concerns he wanted to add to this.

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MR. MUMFORD: Can I just make one more point?

THE COURT: You may.

MR. MUMFORD: Your Honor, on the point about when we

received it, there may be a dispute we have with Mr. Barrow on

that because I --

THE COURT: I don't want to hear about that right

now. You work it out with him. And if there's an issue, we'll

take it up once I have more understanding of the substance of

what's going on.

Mr. Bundy.

MR. MUMFORD: Thank you.

DEFENDANT RYAN BUNDY: Yes, ma'am. Concerning this

very same issue, it almost appears that my motions are not

being read or considered because I did, more than a month ago,

put forth a motion for discovery, including all of these

Government witnesses.

THE COURT: Right. But, Mr. Bundy, as I've denied

your motions repeatedly, you've never made a showing that

justifies going beyond the representations that have been made

here. You can't just continue to cite rules. You have to make

a factual showing for the basis for the Court to compel beyond

what's already been provided, and that's why your motions have

been denied. They're largely legal rhetoric without factual

showings.

Right now, Mr. Mumford is making a factual argument.

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That there is a need to know the identity of these confidential

human sources because that which has been redacted has

prevented the defendants from collectively -- including you --

from fairly challenging the Government's case or choosing to

put on what they want.

So I'm going to read those facts. Then I'm going to

listen to the argument. But your point about the prior motions

doesn't get us anywhere because you've not made factual

showings.

There is a -- an initial privilege on the part of the

Government to withhold identities. So to go past that

privilege, you have to make a factual showing.

I'm going to read these materials. So -- and now

that I've heard so much evidence, I have a very good

understanding of what the defendants' theories are and what the

Government's theories are. And we'll take this up after I've

had an opportunity to read them all.

DEFENDANT RYAN BUNDY: The point is it was asked for.

I did ask for this discovery.

THE COURT: And the point is you haven't asked for it

in a way that shows, factually, the Government's privilege to

withhold identity should be overcome here, and that's what I'm

trying to explore here.

So that will table the discussion about informants

until I get all of that data.

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MR. BARROW: Can I be excused to --

THE COURT: You may. 

Yes, Mr. Mumford.

MR. MUMFORD: And, your Honor, I was going to say I

really appreciate your Honor's point about -- coming down on

the issue of who is the occupiers that they're referring to.

Your Honor may recall that I asked one of the agents

on the stand whether any of the protestors were confidential

informants, and he said no.

And so -- and so -- and so I just -- and that was --

your Honor, that was Mr. Chad Lapp. He testified he was not

aware of any informants within the protest group, is what he

had said. So that --

THE COURT: And that term "protest" is also --

MR. MUMFORD: Exactly.

THE COURT: -- subject to interpretation. Your

definition of who a protestor is, without having defined it

with the witness, can give rise to other things. 

So let me just say a couple of other points.

To the extent the defendants are concerned that the

jury would attribute to any one defendant, as a co-conspirator,

the conduct or statements of others -- you'll recall that in

the final instructions -- and we'll review these one more time

in detail -- the Court's proposal to instruct the jury is

consistent with law. In order for any defendant to be charged

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 29 of 262
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with the statement or conduct of another as a co-conspirator,

there has to be a basis for the jury to find, first, there was

in fact the alleged illegal conspiracy.

Secondly, the conduct or the statement that is being

argued as attributable to a defendant was made by a

co-conspirator in furtherance of a conspiracy.

And, third, the defendant was a member of the

conspiracy.

So that premise continues. That is solid law. And

the Government, when it argues its case, when it refers to an

act or a statement that the Government urges the jury to

attribute to one or more conspirators, the Government has to

identify who that person is. It can't be an unknown person.

It can't be it's Mr. Wampler saying something or it's some

other person whose video we have seen; so there's some

opportunity to avoid this argument about some unknown person,

who is actually a Government agent, making statements. I think

that's the defendants' theory here, that there is some agent

out there making statements that would be attributable to the

defendants. And that's just wrong. That can't happen. And,

in fact, Mr. Mumford has asked for a modification to the

informant instruction to say that no one can conspire with an

informant. That's true.

His problem, right now, is trying to identify by name

who those people are. And I have to sort this out based upon

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what I have seen in the trial versus what are in these

statements and the extent to which they make any difference.

I want to, again, go back to the primary point here.

There has been a lot of time extended by defendants in their

case in chief and in cross-examining the Government's witnesses

at length about their assertedly good faith belief about

propositions of law and that being a motivation or their

motivation for the conduct that the Government charges was

actually co-conspirator conduct.

The defendants have had a full rein to explore this.

And, in many respects, have made the trial about collateral

issues and not about the actual intentions.

I've deferred to the arguments of the defense --

defendants about their need to develop a factual basis for

their theory of the case. But, in the end, the arguments have

to go back to whether there was in fact a conspiracy to prevent

officers of the United States from doing their duties. The

charged officers are Fish & Wildlife workers and BLM workers.

And there need not be any proof that anyone was ever impeded or

that any Fish & Wildlife worker actually felt impeded or was

impeded. The crime is the agreement to prevent them by force,

threat, or intimidation.

Because of the nature of the charge, it's really only

possible, potentially, to prove such a case circumstantially.

So the Government's been given leave to introduce evidence --

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not directly or -- in the definition of direct evidence -- that

is, supportive of the charged conspiracy -- but circumstances

from which rational jurors could conclude that there was in

fact an illegal conspiracy.

The fact that defendants consistently assert that

their purpose was, quote, to protect the Hammonds or to protest

the Hammonds' treatment or to protest land use management

policies of the United States or to seek to acquire title to

federal land by means that, frankly, are not legally cognizable

but they think they are, are collateral points to whether they

actually had an intention to impede.

Rational jurors could conclude -- could but do not

need to conclude -- that the fact that ultimately there was a

conspiracy to occupy the refuge and to do it in an armed

fashion -- in the words, Mr. Bundy himself testified to under

oath that without the arms they wouldn't be taken seriously;

and if they left, then those workers would just come back.

That is very -- that is evidence the Government can point to,

to argue to the jury that they should draw the inference that

the illegal conspiracy existed and one or more of the

defendants were part of it, willingly, knowingly, and should be

found guilty.

On the other hand, the defendants have had a long run

here at producing each of their individual stories, their

personal backgrounds, their reasons for believing what they

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believe about the law for the purpose of showing their state of

mind was not the charged conspiracy but something else.

So that is what this trial has been about; if, in

some respects, on the ends of potential relevance. But it's

the Court's duty to permit the parties to develop their

theories. Counsel are going to be free -- and Mr. Bundy, if he

chooses to argue his own case or, Ms. Cox, if you choose to

argue your own case, are going to be free to draw to the jury's

attention the facts they think prove the Government's theory is

wrong. And that there wasn't any illegal purpose. That the

jurors might not have agreed -- might not agree with their

purpose, but it wasn't a crime to do this.

On the other hand, the Government can say, "It is

too." And that's really why we're here, is to give the jurors

a fair opportunity to understand the perspectives based on

admissible evidence, not a lot of other material.

So while I'm thinking about it, Ms. Harris and

Ms. Ludwig, I want both of you -- as standby counsel -- to the

extent Mr. Bundy is going to be making closing argument or

Ms. Harris is going to be making closing argument, I'm charging

each of you lawyers with the responsibility of reviewing with

them what the parameters are of a proper closing argument

because they don't know. And they're not going to be permitted

to argue "I didn't know." They can't make golden rule

arguments. They can't ask the jury to put themselves -- the

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jurors in their personal positions. That's improper.

They can argue about what is reasonably inferable

from the evidence but never to appeal to the personal biases or

prejudices, and the like. But you must do this, and go through

with these self-represented parties what you have learned

yourselves in terms of proper argument so that they're not

interrupted. They need a fair opportunity to present their

case, and I don't want them in a situation where because of

their lack of experience they think they can argue something

and then they're found -- there's an objection sustained, and

they're not ready to proceed because they don't know.

So what is basically the rule is you're free to tell

the jury what you think they should conclude from the evidence.

You should not be using in your arguments words like "I

believe." Because, (A), you're not on the witness stand when

you're arguing. So you cannot personally vouch for anybody.

You can say to the jury: They should believe witness

X, Y, Z because this person is inherently credible. You saw

how the person testified. You saw that when there was

cross-examination, they held fast to -- there -- there was

corroboration. All of those things. But you cannot stand

before the jury and say I believe this, that, or the other

thing because you can't. It's not a proper -- proper time.

But, Ms. Ludwig and Ms. Harris, I trust you'll help

them outline what they can properly do, so they can channel

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what they want the jury to get in a legal way. 

And I'm assuming, Mr. Schindler, you're going to be

making the closing for Mr. Medenbach?

MR. SCHINDLER: Yes, please.

THE COURT: All right. Okay. So -- yes, Ms. Harris.

MS. HARRIS: Good morning.

THE COURT: What do you have for me?

MS. HARRIS: I just -- I think -- want to supplement

Mr. Mumford's arguments, knowing that the Court will be

undertaking an in camera review. And just in case it wasn't

emphasized in Mr. Mumford's argument -- it might have been -- I

just want to add one consideration.

I understand the Court's guidance this morning about

co-conspirator statements and the protection that that affords

in this case. But I think one thing -- another consideration,

from our point of view, is the physical evidence in the case.

And the extent to which the physical evidence derives from the

conduct of people who are confidential human sources, then I

think that's another reason why, obviously, knowing who those

people are is important in defending the case.

We've had evidence presented in the form of firearms,

lots and lots of ammunition. That the -- the people who were

proffered by the Government to introduce that physical

evidence, it seemed as if they were selected because they did

not know the source. But certainly they --

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THE COURT: The -- that whole proffer had to do with

where the evidence was found --

MS. HARRIS: Yes.

THE COURT: -- and who found it.

And the premise that is associated with the

conspiracy has sufficient support to go to the jury, but these

are factual points about which I expect capable advocates will

be poking at the jury.

That if the Government wants the jury to attribute

16,000 live rounds of ammunition to a conspirator -- allegedly

Ms. Cox -- they need to know -- they need to be satisfied that

those rounds came from other co-conspirators and not from

people who were government agents.

This is why, I think, Mr. Mumford's asking for that

add-on to the informant instruction.

You don't need to know who the person is by identity

to rule this out, necessarily. The point is they have the

burden to prove there was a conspiracy. And every -- every

point they make about statements of the defendants or others

has to be tied back, again, to who made the statement and are

they a member of the conspiracy.

And if, by definition, you can't be a member of the

conspiracy if they're an informant and they haven't clarified,

that's a failure of proof, too.

So I'm not ruling. What I'm saying is these issues

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come up in a variety of contexts, and instructions are another

way to address the point, though. So I -- thank you for what

you're saying.

I need to read what I -- what I don't know, so that I

understand whether there is a problem or it's merely a

hypothetical one.

So let me -- let me have the benefit of that, and

we'll take that up.

Now, other than Mr. Puckett and the potential of him

calling -- being called on Monday, I'm getting the sense

here -- and other than resolving this informant problem, I'm

getting the sense here that the defendants provisionally then

would rest today. Is that right? After the witnesses we've

talked about?

I need to make some plans around jury scheduling,

which is why I need to know this. And another unrelated matter

I have to take up sometime today. So I need to know, in

timing, what -- what you're planning.

(Pause.)

MR. MUMFORD: Your Honor, there is one -- there is

one -- there's one additional issue that we may have.

I'm trying to get some more information about it

right now. It concerns the identity of this Fish & Wildlife

employee. It sounds like the Government may be presenting that

in their rebuttal case, anyway. So maybe we don't even have to

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provisionally rest. But we're trying to get some more

information about who this individual is.

THE COURT: Well, let me say this. Can I ask the

question this way? Other than the witnesses we've talked about

this morning, is there any other evidentiary presentation?

Mr. Bundy, yes. Your video segment?

DEFENDANT RYAN BUNDY: The video segment, and also

the notebook page.

THE COURT: Yes. What's your proffer there?

Updated?

DEFENDANT RYAN BUNDY: Well, for the notebook page,

could call in Ms. Melissa Cooper to authenticate that notebook

page.

THE COURT: Okay. Bring her in, and I'll take it up

outside the presence of the jury. I think that's the easiest

way to figure out what she says or doesn't say.

DEFENDANT RYAN BUNDY: She's not available today.

She's not here in the state. We would have to call her --

THE COURT: Why don't you do -- well, tomorrow's

Saturday. Why don't you see if the team can get her available

by telephone for a proffer over the phone to me so I can

evaluate what the issue is. And then whether she needs to come

or not or whether she can appear by video, if it's admissible.

We can do that part.

Do you want to present the Mr. Finicum video evidence

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 38 of 262
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one way or the other today? Or do you want to wait until you

know that --

DEFENDANT RYAN BUNDY: Well, I would still prefer

them to go together.

THE COURT: Okay. I'm just asking.

DEFENDANT RYAN BUNDY: Sure. Sure. I'm not angry. 

You know, unless, of course, the Government will

proffer that -- or concede that that notebook was found in that

vehicle and -- and accept -- accept that in.

THE COURT: So you know by now how to pursue that.

Somebody needs to talk with the prosecutor, on your

behalf, and see if you can get a stipulation.

So I'm not going to compel any statement from

defendants that they're resting today. I think it's fair to

just say there are a couple of loose ends that are still being

pursued, that have been identified, but none other than what's

going on.

Are you frowning at me, Mr. Knight?

MR. KNIGHT: No, no.

THE COURT: All right. So I assume the Government's

ready to go with additional witnesses, even --

Just a minute, Mr. McDonald.

 -- on a provisional process?

MR. KNIGHT: We are, your Honor.

THE COURT: So, Mr. McDonald, would you come on up to

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the front, so I can see you.

MR. McDONALD: Where would you like me, your Honor?

THE COURT: Any old place. How about right here?

There's a seat and a microphone there.

MR. McDONALD: Sure. Thank you.

THE COURT: Why don't you state your appearance for

the record, for the benefit of all defendants.

Mr. Ryan Bundy is over here I don't know if you've

met him.

MR. McDONALD: Not personally, but I'm familiar with

him.

THE COURT: All right. And you're here on behalf of

the friends of the Malheur refuge, to further seek quashing, or

something, of the subpoena Mr. Bundy served? Is that correct?

MR. McDONALD: Correct. So, for the record, David

McDonald. I'm here -- I was contacted yesterday by members of

the Friends of the Malheur Wildlife Refuge. They asked me to

review the subpoena that was served on them by Mr. Bundy and

his defense team, and asked the Court to quash.

I understand that they have previously contacted the

Government. The Government had filed a motion to quash. The

Court heard that yesterday, but I -- I'm not privy to the exact

colloquy.

But I understand that you carried it for today

because you wanted to have live bodies.

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So, yesterday I drafted a special appearance,

which -- and it's been filed. I filed another motion to quash.

They are the appropriate party to move to quash because they

are the third party that's in receipt of the subpoena. And I

stated grounds within that motion for the reasons why it should

be quashed. I filed two additional affidavits. One by the

person who was served, Mr. Jerry Moore. He is the secretary of

the Friends of the Malheur Wildlife Refuge.

And he -- and as you can see, I have the records that

were subpoenaed. And -- but we're asking the Court to just

quash the subpoena.

I would say, at the outset, that under 17(c),

normally, it's my experience that these subpoenas are pretrial

subpoenas. So it was -- I was surprised to see these on the

last day of the defense case -- or next-to-the-last day of the

defense case. But I also am not aware and I could not find in

the record any showing of a necessity of the subpoena under

17(b).

Generally, there is a requirement that the defendant

who is serving the subpoena make a showing that there is a

necessity of the witness present for an adequate defense, and I

have seen nothing by Mr. Bundy which states any necessity for

these documents in any way, shape, or form.

I can go through the other parts of the motion, if

the Court wishes. I also put in there, in the alternative, if

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he could tell us what he wants out of them, tell the Court what

he wants out of them. I have the records, and the Court could

review them. They're not that voluminous.

THE COURT: Well, I appreciate your doing what you

have done.

Has there been any direct conferral with Mr. Bundy

on -- by you on behalf of the friends association?

MR. McDONALD: No, I contacted standby counsel last

night. But I was -- you know, Mr. Bundy remains in custody.

And --

THE COURT: Sure. So let me suggest this.

We have about three minutes before the jury has to

come in. We're starting with the jury at nine o'clock.

MR. McDONALD: Yes.

THE COURT: What I would suggest -- and the marshals,

I'm sure, would permit for you to bring your chair around and

just go over here and talk with Mr. Bundy. We'll -- we'll --

you and Ms. Ludwig and Mr. Bundy. And see if something can be

narrowed by your discussion.

And then, after that, at the next recess, I'll take

up argument again. We'll recess probably around 10:30. I'm

sorry if you have to come and go, but right now the jury is the

priority.

MR. McDONALD: I understand the Court's time

restrictions.

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THE COURT: Okay. Would you please just bring your

chair around. Come over here. 

And turn your microphone off, Mr. Bundy, so that your

discussions are not broadcast to the room.

Everyone else who needs to take a restroom break, or

something, can.

And then, in a few minutes, I think Ms. Maxfield will

get Blanchard on the phone. Right? In just a few minutes.

So you guys -- you over here see if you can talk

through the friends issue.

MS. MAXFIELD: I've got my fingers crossed.

MR. PHILPOT: Your Honor, may I be permitted to step

out and talk to a witness while Mr. Mumford --

THE COURT: As long as it's one you've told me about

and not a new one, because you've had disclosures now. This is

not another new witness? 

MR. PHILPOT: It is likely not. And we'll probably

be just releasing this witness.

THE COURT: Go talk.

MR. PHILPOT: Thank you, your Honor.

THE COURT: You're limited to what has been

disclosed, though.

MR. PHILPOT: Thank you.

THE COURT: All right. So while they're talking, I

need a projection of timing, so that I can get for the jury --

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get a lunch break scheduled for the jury.

Nobody's here who can tell me anything.

(Pause, Court and clerk conferring.)

THE COURT: Why don't we plan for the jury lunches to

come, Ms. Boyer, around 11:30. And we'll take a break where we

are. A short break.

The jurors have asked that they have a short lunch

break. They are -- they're ready to hear what's to be heard

and to get their week over with so they start their journey. 

So we'll plan for a lunch break about 11:30.

Wherever we are, it will be about as long as the jurors need,

and then we'll continue.

MS. MAXFIELD: Your Honor, does it work to --

THE COURT: And the jurors need to leave by 2:30

today. And then, after that, we'll take up at some point. I

have to do a three o'clock unrelated matter.

So about 3:30 we'll reconvene on jury instructions,

so that I can get those in a more final form.

So, gentlemen, while you were out -- we're off the

record.

(Off-the-record discussion.) 

(Recess taken at 8:59 a.m.) 

(Court resumes at 9:05 a.m.) 

THE COURT: All right. I would like to go back on

the record and speak with Mr. Fry.

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In fact, I'm going to suggest, since Mr. Blanchard's

testimony is relatively short, that Mr. Fry take the witness

stand so that we don't have to send the jury out for the

marshals to escort him, and I'll just explain he's going to be

there and wait during the witness's testimony.

Is that all right with you, Mr. Olson and Mr. Fry?

MR. OLSON: Yeah.

THE COURT: Mr. Fry, would you come on up here to the

witness chair.

MS. MAXFIELD: Your Honor --

THE COURT REPORTER: I need your microphone on,

please.

THE COURT: We cannot hear you at all.

MS. MAXFIELD: Oh, sorry.

Will it work for me to examine Agent Blanchard from

back here? Will he be able to hear me from the phone system?

THE COURT: I don't know. I don't know the answer to

that.

Mr. Olson, why don't you come on up here. And, if

necessary -- I'm guessing it will work, but you can -- we'll

have to figure something out.

Good morning, Mr. Fry.

DEFENDANT DAVID FRY: Hey, good morning.

THE COURT: As you've been participating in the

trial, you've seen several of the co-defendants have a similar

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 45 of 262
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conversation with me about their right to remain silent and

their right to choose to testify or not to testify.

Do you remember those?

DEFENDANT DAVID FRY: I do, yes.

THE COURT: Have you talked with Mr. Olson about this

question, as to whether you should choose to testify or choose

to remain silent? Have you talked with him about that?

DEFENDANT DAVID FRY: I did.

THE COURT: More than once?

DEFENDANT DAVID FRY: Yes.

THE COURT: Have you reviewed with him his

assessment, as a lawyer, about what risks you might face if you

choose to testify, as opposed to risks you might face if you

don't testify? Have you gone through that weighing of the

risks and, maybe, benefits?

DEFENDANT DAVID FRY: He's explained everything, yes.

THE COURT: All right. Have you considered his

advice?

DEFENDANT DAVID FRY: I have.

THE COURT: All right. Of course, you do have the

right to remain silent and you have the right to choose to

testify.

If you do choose to testify, you're subject to

cross-examination, just as you've seen the others -- every

witness being cross-examined by the other side.

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Do you understand that?

DEFENDANT DAVID FRY: I do.

THE COURT: And once you start testifying and waive

your right, you can't pick and choose which questions you're

going to answer. You'll have to answer them all. At least to

the extent I ruled they are relevant questions. Yes?

DEFENDANT DAVID FRY: I understand.

THE COURT: Okay. Has anyone put any pressure on you

to waive your right to remain silent when you don't want to?

DEFENDANT DAVID FRY: No, they have not.

THE COURT: Is the decision to do that your own

personal and voluntary decision?

DEFENDANT DAVID FRY: It is.

THE COURT: Because, in the end, it's your

constitutional right, not Mr. Olson's.

He's doing his best to help you and your case and to

point out legal issues along the way. But he can't make the

decision. It has to be your personal decision.

DEFENDANT DAVID FRY: Right.

THE COURT: And it is?

DEFENDANT DAVID FRY: It is.

THE COURT: All right. Mr. Gabriel or Mr. Knight,

anything else in that colloquy you need me to address?

MR. KNIGHT: No. Thank you.

THE COURT: All right. I'm satisfied Mr. Fry is

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 47 of 262
 48

making a knowing, intelligent, and voluntary waiver of his

right to remain silent. And as soon as Ms. Boyer comes in --

can we see if we can get Mr. Blanchard on the line and see if

we can make connection with him?

MS. MAXFIELD: Yeah, he is supposed to be waiting.

THE COURT: Okay. 

MR. OLSON: Your Honor, Mr. Fry had a question about

the oath. 

THE COURT: Yes. Yes, sir.

DEFENDANT DAVID FRY: Yes, I was wondering would she

be willing to say -- you know, how normally they say in God --

like, "so help you God," can I -- can I ask if she would say,

"So help you Jehovah."

THE COURT: We never say "so help you God" in the

administration of an oath because we respect all witnesses'

rights to choose whether they believe or they don't believe.

What is required is that you acknowledge that there

is an obligation to tell the truth and that you acknowledge

there are penalties if you don't.

And so the normal oath, as you've heard, is under

penalty of perjury, do you solemnly swear to tell the truth.

Now, you can say, "I do, so help me Jehovah," if

that's meaningful to you. You may say that.

DEFENDANT DAVID FRY: Okay. Okay. That's fine then.

THE COURT: Would that work for you?

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 48 of 262
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DEFENDANT DAVID FRY: That would work.

THE COURT: And you want to say it that way because

you believe in Jehovah? And do you understand there are 

consequences in your religious belief if you promise to tell

the truth and then you don't?

DEFENDANT DAVID FRY: That's correct, yes.

THE COURT: Okay. That's fine. It's perfectly

consistent with the oath. 

Does that -- is that acceptable to you, Mr. Olson?

MR. OLSON: Yes.

THE COURT: And to the Government?

MR. KNIGHT: Yes. Thank you.

THE COURT: Okay. So let's -- let's see if we can --

Ms. Boyer's not here.

Can someone see if we can get the witness on the

telephone.

See if Liam can help you, Chris.

Mr. McDonald, have you been able to make some

progress?

MR. McDONALD: Sort of, your Honor. What I proposed

was that Mr. Bundy prepare a list of the people that he thinks

would -- if they were on that list, would be biased. And then

I would review that list with his standby counsel.

THE COURT: Okay.

MR. McDONALD: And if the people that he names are on

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 49 of 262
 50

there, I would disclose that to him and the donation amount.

THE COURT: Okay. So that -- you're looking for

whether any of the witnesses are members of the friends?

MR. McDONALD: Well, not just witnesses.

THE COURT: I was asking him.

MR. McDONALD: I'm sorry.

DEFENDANT RYAN BUNDY: Not only witnesses, Government

witnesses, other persons such as Lord Grasty, others --

THE COURT: Well, it's, honestly, not relevant for

the jury unless his bias is somebody on whose testimony they're

going to need to rely. So I'm going to focus you on that

point. I'm not making rulings. I'm just saying to be -- to

increase the chances you've got something here that might

require a court order, you need to make it relevant to what's

happening here, not just a general discovery inquiry.

DEFENDANT RYAN BUNDY: And, of course, that is -- of

course, that is the reason for -- for the subpoena. But, you

know, that would also include, you know, Governor Brown.

THE COURT: Governor Brown's status is not relevant

in the case. I've repeatedly ruled that the only issue about

the executive here is that you made a redress of grievances and

you did not get a response.

Her role, if any, in the manner in which the law

enforcement response was coordinated is not an issue in this

case.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 50 of 262
 51

To the extent any defendant who's acquitted, for

example, wants to bring a civil rights action saying rights

were violated, or something, that's a different case and a

different issue. So, no, not that. And I'm -- I'm really not

going to talk about this anymore because we now really do need

to move on. It's 9:10.

Mr. McDonald will stay in touch with Ms. Ludwig.

We'll continue to discuss this issue. I'm not ruling on

anything. I'm just saying you've got an avenue to pursue. It

might be worth pursuing it.

Ms. Boyer, would you -- 

Thank you, Mr. -- pardon me?

MR. McDONALD: You would like me back here at 10:30?

THE COURT: I would like you to -- I would like you

to work with Ms. Ludwig for timing. We'll continue. 10:30

will be a short break. But we've got plenty of witnesses for

the morning.

We're going to have a noon break, where I'm going to

be reading, now, 13 redacted documents that I didn't know I

needed to read. And then we're going to resume again. And

we'll be recessing at 2:30, and we'll come back at 3:30. So -- 

MR. McDONALD: You're asking me to remain available?

THE COURT: I'm asking you to work with Ms. Ludwig,

because she works with Mr. Bundy, to try to get to a place

where your conferral is complete. And at that point I'll take

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 51 of 262
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argument. Not now.

MR. McDONALD: Okay. Thank you, your Honor.

THE COURT: Ms. Boyer, please get Agent Blanchard on

the phone.

(Clerk placing telephone call.)

THE WITNESS: David Blanchard.

THE COURT: Mr. Blanchard, this is Judge Anna Brown.

Good morning, your Honor.

THE COURT: We are on the record, outside the jury's

presence and in our trial, United States versus Ammon Bundy,

and others.

You're being called as a witness remotely because of

your unavailability to be here in person. 

So the first point in my speaking with you is to

ensure that I can hear you and your voice is coming across the

broadcast.

I'm going to ask Ms. Lisa Maxfield -- she's counsel

for Mr. Wampler -- to just converse with you a little bit to

see if her microphone is working and broadcasting to you and

here. And then, based on your responses, we'll figure out if

we need to make technical adjustments before we bring the jury

in.

Once we do bring the jury in and after they're

seated, I'll ask you to please raise your right hand to be

sworn, and then the clerk will administer the oath. And we'll

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 52 of 262
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go through a process, as I assume you're familiar with from

other kinds of testimony. Understand?

THE WITNESS: Yes, ma'am.

THE COURT: Very good. Ms. Wampler -- I'm sorry.

Ms. Maxfield, would you see if you can communicate from your

place there with that microphone.

MS. MAXFIELD: Good morning, Agent Blanchard. Can

you hear me?

THE WITNESS: Yes, I can. Good morning.

MS. MAXFIELD: All right. Great.

THE COURT: All right. Who else expects to be

speaking with Agent Blanchard? I want to test microphones. 

Anybody else?

MR. GABRIEL: I do, your Honor.

THE COURT: Okay.

MR. GABRIEL: Mr. Blanchard, this is Craig Gabriel.

Can you hear me?

THE WITNESS: Yes, I can. Good morning.

THE COURT: Okay. So just stand by there.

Are you still an agent?

THE WITNESS: Yes, I am.

THE COURT: So we'll refer to you as Agent David

Blanchard then, yes?

THE WITNESS: Yes, ma'am.

THE COURT: Okay. We're going to bring the jury in.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 53 of 262
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Just stand by there.

Let's all stand for the jurors.

(Jurors enter at 9:15 a.m.) 

THE COURT: Everyone, please be seated.

And good morning, ladies and gentlemen of the jury.

THE JURORS: Good morning.

THE COURT: Has anything come across your -- your

world? Any exposure at all about the case since we adjourned

yesterday?

Everybody's saying no.

All right. So you'll see Mr. David Fry is seated

here. He is going to testify. But before he's sworn, another

witness is testifying by telephone.

So you're only going to hear this witness's voice.

He is an FBI agent, David Blanchard, being called by

Ms. Maxfield.

So let's begin. 

Agent, would you please raise your right hand to be

sworn.

THE WITNESS: I'm ready.

(Witness sworn.)

THE WITNESS: I do.

THE COURT: Sir, would you state your full name,

please, and spell all of it.

THE WITNESS: David L. Blanchard. D-A-V-I-D, L.,

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 54 of 262
 55 Blanchard - D - By Ms. Maxfield

Blanchard, B-L-A-N-C-H-A-R-D.

THE COURT: Thank you, sir.

Ms. Maxfield.

MS. MAXFIELD: Thank you, your Honor. 

DIRECT EXAMINATION

BY MS. MAXFIELD: 

Q. Good morning, Agent Blanchard. How are you employed?

A. The Federal Bureau of Investigation.

Q. And where are -- where do you work?

A. I'm assigned to the Los Angeles division, the Santa Maria

resident agency, which is located in Northern Santa Barbara

County.

Q. In February of this year, did you arrest Neil Wampler?

A. I did.

Q. And was that on February 10th?

A. Yes.

Q. The next day, did you drive Mr. Wampler to a court in Los

Angeles?

A. Yes.

Q. And during that drive, did you have a tape recorder that

was recording everything that was said?

A. Yes.

Q. At about 8:18, did Mr. Wampler make a spontaneous statement

to you?

A. Yes.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 55 of 262
 56 Blanchard - D - By Ms. Maxfield

Q. And what was that?

A. Based something to the effect that he could not resist the

temptations to try to proselytize a bit.

Q. And what else did he say?

A. "I don't know if I really want to talk about it all that

much, but I might be able to give you a few educational sources

that if you ever got around to it, you could kind of look at it

and see where our heads are at, and stuff like that."

Q. Was he provided a piece of -- a piece of paper and a pen?

A. Yes.

Q. And did he give you and the other agent who was with you a

list of resources that he thought would be helpful in

understanding where our heads are at?

A. Yes.

Q. And what were those sources?

A. The first source was on YouTube. And he listed some names:

Chris Anne Hall, Lisa Tulca (phonetic), Sheriff Mack, and the

final resource was the Yale Freeman lectures.

Q. Did he then describe to you what each of those sources --

basically, give you a summary of what -- what they said?

A. He went on to say that these sources -- if -- if we wanted

to get a clue into their thinking -- of the liberty activists

and their thinking, he further stated that it was his idea to

invite Chris Anne Hall to come to Burns, Oregon.

Q. Did he also -- after he gave you the four names, did he

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 56 of 262
 57 Blanchard - X - By Mr. Gabriel

also give you the significance of each one of those people?

A. He did give further explanations, yes.

Q. And those explanations were recorded?

A. Yes, they were.

Q. And did he tell you that the Yale Freeman professor had a

specialty in Colonial America and the American Revolution?

A. Yes, he said that.

Q. And did he tell you that Sheriff Mack had won a -- excuse

me, a landmark Supreme Court case?

A. Yes, he did.

Q. Is that basically the substance of what he shared?

A. Yes.

MS. MAXFIELD: Okay. No further questions, thank

you.

THE COURT: All right. Any questions?

Mr. Gabriel.

MR. GABRIEL: Thank you, your Honor. Briefly.

CROSS-EXAMINATION

BY MR. GABRIEL: 

Q. Good morning, Agent Blanchard. Craig Gabriel here. 

I want to refer you to your 302, on the first page,

the second to last paragraph, and then the last sentence.

Did Mr. Wampler make a spontaneous statement to you

about where he had been previously?

A. Yes.

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Q. What did he say?

A. He stated I was at Bunker [sic], Nevada, Sugar Pine Mines

and the wildlife refuge in Oregon.

MR. GABRIEL: Thank you, your Honor. I have nothing

further.

THE COURT: All right. Anything else, Ms. Maxfield?

MS. MAXFIELD: No, your Honor. Thank you.

THE COURT: All right. Thank you, Agent. We're

going to terminate the telephone call now.

All right. So, jurors, the next witness is Mr. Fry.

Sir, would you stand, please. Face the jury and the

deputy there. Raise your right hand to be sworn.

(Witness sworn.)

THE WITNESS: I do, so help me Jehovah.

THE CLERK: Please take a seat.

THE COURT: Please formally introduce yourself to the

jurors by telling us your full name and spelling all of it,

sir.

THE WITNESS: Yes. My name is David Lee Fry. It's

D-A-V-I-D, L-E-E, F-R-Y.

THE COURT: Thank you. 

Mr. Olson.

MR. OLSON: Thank you, your Honor.

DIRECT EXAMINATION

BY MR. OLSON: 

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Q. Good morning, Mr. Fry.

A. Good morning.

Q. Your father, last week, gave a -- a bit of a summary of

your early years, your childhood. Is that a fair summary?

A. Yes, it's correct.

Q. All right. We don't need to relive all of that. But one

thing that I think was missed is do you have any other prior

employment other than working for your father's dental

practice?

A. Yes. I've worked, also, at this -- it was called Blackhawk

Industries. It was a plastic making for automobiles. And I

worked there. And it actually collapsed when the auto industry

thing happened in 2008, 2009.

Q. Okay. Did you like that job?

A. It was pretty good paying, yes.

Q. Okay. And then were you employed at your dad's dental

office, all the way up until the time you decided to come out

to the refuge?

A. That's correct.

Q. And what -- he described it. But why don't you just

describe it, in your own terms, what sort of activities or job

responsibilities you had there?

A. I'm basically like the little handyman there. I do

everything. I -- I help with the front reception. You know,

booking in patients. I help repair equipment, hand pieces.

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You know, little levers, and stuff like that.

I also pour models. Make ortho retainers. Help the

doctors assist, you know, doing all of their stuff. So

basically everything that doesn't require, you know, a degree

and, like, ATP stuff, for doctors.

Q. Okay. And back in December of 2015, before you came out to

the refuge, did you know any of the individuals in this room?

The defendants?

A. No.

Q. Did you know any of the people that were charged in this

case, who aren't on trial right now?

A. I do not. I never met these people ever, never. Facebook,

communications, or anything. It's -- this is the first time

with them.

Q. Now, did you know -- did you know or know of LaVoy Finicum?

A. Yes. That's the only person I was -- I -- I knew, in a

sense. I was following his YouTube page. He has his own

YouTube channel. And I subscribe to that, and he put out a

couple of videos. And I actually made some comments, you know,

in his videos. You know, I purchased one of his books.

And it was -- it's kind of funny, because we were

talking about the Jewish festival, Feast of Tabernacles, which

is actually happening now. So --

Q. So what -- what was it about Mr. Finicum that drew you to

his website? Did you guys have some common interests?

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A. I believe I was just browsing through and one of his videos

popped up in some -- some constitutional thing, you know. And

I guess I liked the way he portrayed himself. He was a great

speaker. And he said a lot of valid -- you know, had a lot of

valid points. And so I just, hit the little "subscribe"

button. So then you would see all of the videos that they, you

know, come up with next. And so you just watch them.

Q. Did you ever communicate with him, either through the web

page or some other means, before you came out to the refuge?

A. Yes. It was -- it was like -- so when someone has a

YouTube channel, when they post a video, there's a little

comment section. And I posted some comments and he responded.

And, you know, that was -- I was talking about his book and --

and the Jewish feast.

Q. Okay. And so -- now, what day did you come out to the

Malheur National Wildlife Refuge? What day did you leave from

your home in Ohio?

A. I left on the -- January 4th.

Q. And can you tell us what -- what led up to that? You know,

what had you heard about this particular protest going on here

in Oregon?

A. Well, I heard that it was -- you know, it was an armed

protest and that they started occupying this bird refuge. And,

you know, at the time, they were saying it was -- it was an

unoccupied building. And so I really didn't know what was

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going on. And I had a strange premonition, you know, feeling,

you know, while I was watching these videos that, you know,

something would happen to LaVoy. You know, that he probably

would be killed. And so I was concerned with that.

Q. Let me interrupt you for a second.

Did you know that -- did you -- did you know that

Mr. Finicum was at the refuge?

A. Yes. It was -- it was in his videos. Yes.

Q. Okay.

A. And so I -- you know, I was really interested in meeting

him. And so I decided that this was a great opportunity for me

to get out of the house to go check out this protest and see

for myself what was going on.

Q. What did you understand that this protest was all about?

A. Well, they were complaining about, you know, federal

government's corruption within the Bureau of Land Management.

I guess they're doing things that are beyond the -- their legal

authority, I suppose.

Q. Had you ever done much protesting yourself, in your life,

before this?

A. No, I haven't. This is actually the very first protest

I've ever joined. And one thing about this is that, you know,

most other protests I've seen lately, you know, involve burning

down buildings and rioting, straight up. And I didn't want to

be a part of anything like that. And this one was portrayed as

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 62 of 262
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a very peaceful protest, and so I felt comfortable in checking

this one out.

Q. Do you have a lot of strong political and spiritual

beliefs, Mr. Fry?

A. Yes, I do. I have a lot of religious beliefs that conflict

with a lot of the -- you know, federal policies that are in

place. I -- I am strongly against a lot of the wars that are

going on; in arming all of these moderate rebels over there in

the Middle East, who topple their own governments over there.

I'm not a fan of abortion. I don't fairly agree with the way

the government has been managing anything lately. It seems

like they have kind of fallen apart in providing their support

of us, the we, the people. And so I feel like they've failed

in a lot of aspects.

Q. So, in the past, how would you have expressed those

opinions of yours?

A. In the past, I would just, you know -- I actually have a

web page, before, that I would run. And it was just like a

news blog.

And I called it -- it was actually called "Dead

America." And just kind of signaling that America is a dying

country. And so I had that. And I was posting all sorts of

political views on there. And I've tried, you know, alternate

things like that. Talked on the forums. Expressed my views on

there. I've signed petitions. But I've never -- I've never

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 63 of 262
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joined a protest, so this was something fun for me, I guess.

Q. So what was your understanding -- you know, before you got

out here, or as you were coming out here, what was your

understanding about this refuge, as far as, you know, who

controlled it or what agency, if any, controlled this -- this

refuge?

A. I actually did not even know what agency controlled the

refuge. I just assumed, you know, everything was BLM, because

that was the name that was thrown out so much.

And then also it said -- you know, the articles and

stuff I read was saying it was unoccupied building, and I

didn't know that -- at the time that people were actually

working there. I thought unoccupied was -- it was just kind of

abandoned -- one of these federal abandoned buildings, and

stuff. But -- so that's what I knew at the time.

Q. Okay. So do you have -- among the issues that you're

interested in -- well, let me ask it -- the question this way.

Do you have public lands in Ohio?

A. Actually, I've never heard of any kind of public lands in

Ohio.

Q. Are you familiar with, you know, some of the issues that

have been talked about in this case? Public lands, issues of

ranchers' access to public land, and so on, were those issues

ones that drove you or ones that you thought about much before

you came out here?

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 64 of 262
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A. At the time I really had no knowledge of this whole public

land issue. Like -- again, public land in Ohio, it's unheard

of. It seems to be more of a Western kind of problem, and so I

wasn't really into that -- that -- that isn't what drew me out

here. I was more -- just concerned to see, you know, what it

was that they were talking about. And so that's -- I learned

most of that when I actually got here.

Q. And were you also hoping to come out here to speak about

some of the other things that -- that you are concerned about?

A. Right. And I -- basically, you know, they're complaining

about the -- the Bureau of Land Management and -- you know, I

actually wanted to talk about Fukushima because I thought it

would be somewhat relevant because I -- I disagree that the

government was able to manage anything at this point. And

so -- I don't think they could manage land.

So I was trying to draw attention towards how our

government has failed in managing our protection about

Fukushima, because they essentially just swept that under the

rug, leaving us exposed to countless amounts of radiation.

Q. And your dad touched on it but -- radiation. So just tell

us, if you would, just briefly. What is Fukushima, and what is

your concern about that?

A. So Fukushima is a nuclear meltdown that happened in Japan

back in 2011, after the tsunami, caused by the earthquake, hit

the Dai-ichi reactors. 

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 65 of 262
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And one of the reactors exploded and threw out, you

know, radiation all up in the atmosphere. And it's -- some of

the reactor cores melted through to the crust. And now they're

filling it with water. But that water is actually leaking out

into the Pacific Ocean by like 300,000 gallons a day. And

it's -- it's -- it's a catastrophic event that's been covered

up, essentially, because, you know, they claim that nothing

could be done. Yet the only way that they --

MR. KNIGHT: Your Honor, I'm sorry. I'm going to

object to the narrative form. To the extent it forms his state

of mind, that's fine. But now we've heard quite a bit about

this. 

THE COURT: A little too much detail at this point,

Mr. Olson. So let's stop it there.

Please go on.

MR. OLSON: Sure. Yes, your Honor. Thank you.

BY MR. OLSON: 

Q. Well, let me ask you this question.

When you came out to the refuge, did you know

anything about adverse possession?

A. I was not aware of that, no.

Q. When you came out to the refuge, was it your intent to be

part of a group to lay claim to this property?

A. I -- I actually -- I wasn't even aware that that was

happening. I thought that it was just a sit-in, basically.

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Q. A sit-in?

A. Yes, like a Martin Luther King style sit-in.

Q. How many days did it take you to drive out?

A. It took me four days, due to the weather. It was supposed

to take, I think it was -- 32 hours, it said on the GPS.

Q. You drove out. Is that right?

A. That's correct.

Q. In your vehicle?

A. Yes.

Q. And where did you sleep on the way?

A. I slept mostly in my vehicle, and then I spent one day at a

hotel.

Q. And how much money did you bring with you?

A. I brought 700 bucks.

Q. And when you came out to the refuge, what was your intent,

as far as how long you thought you would stay, what you might

do next, that sort of thing? Did you think you would stay very

long? Or -- or how did you think that was going to go?

A. Well, I didn't think the protest was going to last that

incredibly long.

Again, I was planning to stay until the point was

made, and I thought everybody was just going to pack up and go.

And I was going to head down to California where my brother was

actually staying, just down south a little bit.

Q. Okay. Where did your brother live, at the time?

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 67 of 262
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A. He was over in -- I think it was Sacramento.

Q. Okay. Was he -- was he in the military?

A. Yes. He's -- he's a marine.

Q. All right. Now, did you bring a gun with you from your --

A. I did not.

Q. Okay. And why not?

A. Because I -- I personally don't believe in -- in -- like

I -- I believe in the existence of reason to have a firearm,

but I personally never got involved in that. I -- generally

speaking, I'm not much of a firearm fan, just due to my, I

guess, mental history. I -- I saw myself using the gun on

myself more than actually ever needing it, so I just never --

never got involved in that.

Q. There was a bumper sticker on your car that said something

about Second Amendment rights?

A. Right.

Q. Where did you get that bumper sticker?

A. I found that at the refuge in a box, and so I just put it

on there.

Q. All right. Did you bring your laptop with you to the

refuge?

A. I did.

Q. And your smartphone?

A. I did.

Q. And other accessories relating to recording and

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 68 of 262
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distributing of videos and such?

A. Yes. I brought all of my -- I brought all of my computer

equipment that's portable.

I brought, you know, cables, some little cards,

little flash drives, and stuff like that.

Q. Now, you mentioned Mr. Finicum's YouTube channel. 

Did you have your own YouTube channel?

A. I did. I had a YouTube channel called Defend Your Base.

Q. And what was the origin of that? Why did you originally

set that up?

A. Well, I'm actually a video gamer as well. And so when

you're, you know, video gaming, some people like to, you know,

record certain events that happened on there. So I would post

those on my channel. And it was basically just -- Defend Your

Base is my online gaming name. And so, like, you know, you

have got to Defend Your Base in your game. So that's where it

came from.

Q. Okay. And -- and later you would use that phrase -- well,

we'll get to that later.

So the Government has introduced some evidence of

your Facebook communications with a person named Mindy on

January 7th, and we've heard some of that.

Who is Mindy?

A. Mindy is my coworker at the dental office.

Q. All right. And is she somebody you know well, or how long

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 69 of 262
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have you known Mindy?

A. Well, I've known her for (pause) probably nine, eight --

nine, ten years.

Q. Okay. And on January 7th, the date of those -- those

communications, are you en route to the refuge, when you made

those communications with Mindy?

A. Yes.

Q. And you said along the lines of, you know, I might be

murdered. Don't tell mom and dad.

A. Correct.

Q. Why did you say that?

A. Well, you know, hearing that it's an armed protest -- you

know, one of the things besides playing games is I research a

lot of things on the Internet. You know, history, stuff like

that.

And, you know, in the past, a lot of unarmed

protests, the government has actually come in and, you know,

killed protestors and brought in the tanks -- you know, this

was known as the Bonus Army March, you know. 

And so I figured if they were killing people at an

unarmed one, that they would probably be killing people at an

armed one.

Q. Did you -- as you were driving out here, did you think this

was an illegal protest?

A. I did not think it was illegal. And a lot of things that

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led me to believe that -- you know, first, I thought it was

this abandoned federal facility.

Actually -- and it's happened in the past, I think.

It was Eric Holder. He's taken over abandoned -- an abandoned

federal -- it was a ROTC, R-O-T-C building. And he was never

charged with that. So it's happened before. But there was

also no warnings of anybody to not go out there. I didn't see

any media saying that it was illegal, the FBI -- no one -- no

one was trying to stop anybody from going in, so I thought this

was just another protest.

Q. As you approached the refuge, was there any kind of

perimeter of law enforcement or any law enforcement presence

that deterred you from moving forward into the refuge?

A. There was not.

Q. And you're coming over from the southeast. Is that right?

A. Yes. I came up from -- it was Winnemucca, Arizona [sic].

Q. Did you stop in Winnemucca to pick up some supplies for the

refuge?

A. I did. I stopped at the Walmart down there, and I just

grabbed a whole bunch of hygiene -- some hygiene stuff. And --

it was canned goods and just basic -- basic necessities, I

guess.

Q. For yourself or for -- to donate to the refuge?

A. Well, I figured if I'm going there, I'm going to need the

supply for myself, too. And so I brought as much as I could.

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And if people needed some, they had some there.

You know, I bought like -- I think it was like ten

toothbrushes, and stuff. A bunch of shampoo bottles. So if

people needed, I had some extras.

Q. So what time of day was it -- what day was it when you

arrived?

A. It was January 8th, at probably -- I would say around 11

o'clock in the evening. It was pretty dark.

Q. And did you arrive at that front entrance?

A. Yes.

Q. Were you greeted by anyone?

A. Yes. I was greeted -- I don't know who they were, since

they were actually wearing their little beanies and -- they had

flashlights out, and they were just pointing them, asking me

who I was. And I said, "I'm here to, you know, check out

what's going on. Help you guys out, if I can. You know, just

kind of see what's going on."

Q. Did they have firearms, that you could see?

A. I couldn't see any -- any firearms. It was really -- it

was really dark, so --

Q. Okay. So how did you get in? Did somebody escort you,

then, onto the premises?

A. He radioed in, saying that there is some -- some guy here,

you know, who's here to help.

They backed a little truck away, and then -- and he

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told me to pull in. And when I pulled in, he said to wait here

for a second. And then another truck came. And they said all

right. Go ahead and follow him. So I followed him all the way

to the bunkhouse.

Q. All right. And did you spend that first night at the

bunkhouse?

A. I did. I slept on the couch in there.

Q. What happened the next day?

A. The next day, LaVoy Finicum came in, in the morning, and I

noticed him. And I said, "Well, hey, good morning,

Mr. Finicum."

And he says, "Well, hello, you know." And I said,

"It's me, David Fry."

And he seemed to have recognized, you know, who I was

because of our previous conversations on -- throughout his

YouTube channel.

And so, at that point, he asked me if I was good at

computers by any chance. And I told him as a matter of fact I

was, you know, pretty decent with them. And so he asked me if

I would help him with some of these computer problems he had.

Q. Okay. So did he tell you to -- to sleep somewhere?

A. Yeah. He says that he's going to want me to go to this --

I guess what we know now as the firehouse building.

He called it the media center because that's where

they were doing a lot of -- it was supposed to be the media

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 73 of 262
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team was coming -- that promised to come for him, but they

didn't. And so he had me sleep in that building, the

firehouse.

Q. Okay. That's the one where Ryan Curtis, who testified a

couple weeks ago, testified that was his office?

A. That's right.

Q. All right. And did Mr. Finicum supply you with a sleeping

bag?

A. Yes. He gave me a sleeping bag and these little foam

mattresses.

Q. So you had not brought out those sleeping pads -- a

sleeping bag for yourself?

A. I didn't have a sleeping bag, but I did bring my blankets.

Q. Okay. So after some time there, did you talk to people and

get to know some other folks there that were present?

A. I -- generally speaking, in that firehouse building, there

wasn't much people at that place. Most people were actually

not allowed to be in there just because there was artifacts in

the basement and they didn't want people being down there

without --

Q. Right.

A. So when I had -- when I arrived I did talk to people, it

was over at, I guess, the bunkhouse, near the fire pit.

Q. Okay.

A. That's --

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Q. All right. So in that first -- you know, let's say 24 or

48 hours that you were there, did you -- did you form an

impression or an understanding as to how the initial occupation

of the refuge happened?

A. How it --

Q. As far as --

A. Okay. So when I was down there -- you know, I did hear

about the Hammonds. Like when I was on my way driving, you

know, they were complaining about the Hammonds. You know,

through another videos they were producing and stuff.

And so there was this whole thing about the Hammond

issue that was going on. And, at the time, I wasn't aware of

what that was. But it seems like that was the driving factor

of what caused the people to be out there.

Q. Okay. And my question wasn't a good one.

What I meant was -- okay. So you said as you're

coming out there, you had this idea that it was an abandoned

property. When you got there, did you come to understand that

there were actually people that worked there?

A. Oh, yeah. So -- so, yeah, I noticed that there was

definitely people working there, you know.

Q. And when you first got there and noticed that, what was

your understanding as to where those people were at that time?

Those employees?

A. So -- so I did ask where the people were. And they had

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 75 of 262
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said that they were on --

MR. KNIGHT: I'm going to object to hearsay, your

Honor.

THE COURT: The objection is sustained. 

Mr. Olson, rephrase the question in a way that goes

to the witness's state of mind and not proof for truth --

MR. OLSON: Sure.

THE COURT: -- unless you've got another ground to do

so. 

MR. OLSON: Sure. 

BY MR. OLSON: 

Q. Just leaving out, you know, what people actually told you,

just what was your understanding, then, in that first day or so

as to where those employees were?

A. My understanding was that they were on vacation.

Q. Okay. But it was apparent to you that there were people

there that did work there, and that were just simply on

vacation? Like New Year's vacation?

A. That's correct, yes.

Q. And did that understanding change over a period of time?

A. Yes. After -- obviously, they're not going to be on

vacation that long. I was told -- objection.

MR. KNIGHT: Object.

THE WITNESS: I'm sorry. My understanding is that

they couldn't -- they weren't at work anymore because they were

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 76 of 262
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told --

MR. KNIGHT: I'm going to object on the basis --

THE COURT: The objection is sustained.

Please listen. Mr. Olson will ask you a question in

a form that will give you an admissible basis to answer what's

appropriate.

BY MR. OLSON: 

Q. Just -- what was your understanding, as for as, you know,

why the employees weren't coming back to work?

A. My understanding was that the management team of that BLM

or Fish & Wildlife were told not to go to work.

Q. Okay.

A. Because there was an ongoing protest.

Q. Okay. Now, Ryan Curtis's computer.

The -- there's a video that the Government has

introduced, Government Exhibit 623, that shows you sitting at

that computer and saying that you're -- you know, you're

displaying your Defend Your Base website.

Did you attempt to hack into that computer?

A. I did not. I actually turned on the computer, at first,

and, you know, it's saying there is a log in, and all of that

stuff.

And so I just left it at that. And I had this --

it's called Linux, and it's a little flash drive operating

system. That when you plug it in -- how a computer works is it

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boots from a hard drive. And whatever is on that hard drive is

the operating system that operates the computer. So that would

be the government's operating system. And so when I plugged

that -- my flash drive in, that's my hard drive.

And so the computer I tell it to boot from that, and

it actually pops up as my own computer.

And so their hard drive, and all of that, is not

being accessed, and so it's not hacked or anything.

It's no -- no data breaching, or anything like that.

And so I'm just using the hardware of the computer.

Q. Okay. And why did you do that?

A. Well, I had this little laptop. It was a -- one of those

little net books. And it's a very slow computer compared to

this other computer that was there, that was, like, ten times

faster. And so I was using that one to compress videos and

work on a web page that I had, because it would run much

smoother.

Q. Now, did you -- did you also use that computer to access --

I may have made a mistake in my opening about this.

Did you access the Internet through that computer?

A. Yes. I had my own cell phone service, Verizon. That's --

you got the mobile hotspots that they have now. And so you can

use the Internet through your own cellular service. And so I

was able to access the Internet through that.

Q. And that's the building, also, you slept in. Is that

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 78 of 262
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correct?

A. That's correct.

Q. And we showed the video earlier during Mr. Curtis's

testimony that you took of your sleeping spot there. Right?

A. Well, originally, I was sleeping right there where Ryan

Curtis's desk area was. I slept on the floor there. And I

noticed that there was mice running around. And so I went over

to the next room over, and it had actually a door where --

where I could close it and the mice wouldn't be able to come

in. So I ended up sleeping there, after that.

Q. Okay. Now, as time went on, did you begin to create some

of your own videos and upload it into your YouTube channel?

A. Yeah. I start creating my own videos because when I was at

the refuge -- and, you know, before going there -- I noticed

that a lot of the media coverage wasn't accurate, and they were

kind of making a lot of stuff up.

And so I decided that I was going to try to get, you

know, firsthand experience and show people what actually -- or

what exactly is going on out there.

And so I started making my own videos to kind of show

people what -- what it's like out there and, you know, who --

what kind of people they are out there, and stuff like that.

Q. Okay. And -- and you shot some videos that didn't involve

any other people. Is that right? Do you remember those?

A. I've shot some video of the wildlife.

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Q. All right. Let's bring up one of those. 2608.

MR. OLSON: Don't publish it just yet.

BY MR. OLSON: 

Q. Mr. Fry, can you tell us what Exhibit 2608 is.

A. Okay. So this is -- this is the video of some sort of

rodent, I guess. I didn't know what it was, if it was a

squirrel or a groundhog. Over in Ohio we have squirrels that

run on trees. And so here, they had them on the ground, I

guess.

Q. So this is some animal that you hadn't seen before? You

didn't recognize?

A. Yeah. I had no idea what it was. It just -- it had the

face of a squirrel but the body of a groundhog. So I called it

the squirrel or mini-groundhog.

Q. So this is a video that you shot at the refuge?

A. Yes.

Q. And approximate date that you shot it?

A. Ah, this would be probably on the 8th, 9th, or 10th, or

something. It was very early on.

Q. Okay. And --

MR. OLSON: Your Honor, I would ask to publish. This

is a matter that we brought up pretrial. I would ask that we

publish this and play it for the jury.

MR. KNIGHT: No objection.

THE COURT: Thank you.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 80 of 262
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Go ahead, Mr. Breton. It's received.

(Video playing with sound.)

MR. OLSON: Can you stop it there.

BY MR. OLSON: 

Q. So, Mr. Fry, do you have an interest in wildlife and

animals?

A. I do. I love animals a lot. We've got three dogs and two

rabbits and --

Q. Did you take some other videos, similar in nature, of some

other wildlife out there?

A. I did. I took a video of the pack of quails that were

running around.

Q. Okay. And did you take another video of yourself

reading -- or -- were there multiple videos that you took of

yourself that -- where you're -- strike that question.

Did people send books to you folks at the refuge?

A. They did. People sent all kinds of books. People sent

Qurans in retaliation against Jon Ritzheimer. He was -- he was

one of the guys who were there. And they know of his

anti-Muslim kind of stance. And so they bought a bunch of --

hundreds -- hundreds of Qurans, I guess, just to antagonize him

there. And then they --

Q. Were there some other books -- other types of books people

sent?

A. There were all kinds of books. Souls of the Black Folks

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 81 of 262
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was one that run into my head really well for some weird --

it's a weird name.

Q. And did you shoot a video of yourself reading a passage or

making some comments regarding the Quran?

A. Yes, I did read a passage. I was just trying to show

people -- I was trying to point out the fact that a lot of

people have a belief that Muslims are like all terrorists, and

stuff like that.

Q. Let me just interrupt you. 

MR. OLSON: And let's show the video. Can you bring

up 2606. Don't publish it yet.

BY MR. OLSON: 

Q. All right. Again, Mr. Fry, was this video taken at the

refuge?

A. It was, yes.

Q. And approximately when was it taken at the refuge?

A. This one would be a little bit -- a little bit later on, in

the mid -- mid -- mid time.

Q. Okay.

A. Mid-month.

MR. OLSON: Again, your Honor, this is a matter of

pretrial, and I would ask that we go ahead and play this.

MR. KNIGHT: No objection.

THE COURT: Thank you. It may be received and

published.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 82 of 262
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(Video playing with audio.)

(Video stopped.)

BY MR. OLSON: 

Q. And so, Mr. Fry, just briefly, again, what was the purpose

of creating -- and did you also put this onto your website?

A. I did, yes.

Q. What was the purpose of that?

A. I was just trying to show people, you know -- I'm not too

big a fan of the divide-and-conquer tactics that's been

happening lately, and so I was just trying to get people --

more people just to, you know, unite and work towards a cause

of fighting against corruption.

Q. Are you Muslim yourself?

A. I'm actually not. I -- I -- I'm a Judeo-Christian.

Q. And that Quran that was there, did you have that with you

at the end, at camp -- at the western encampment?

A. I did. I just put it in my backpack and kept it with me.

Q. So in the Government's case, there was also Government

Exhibit 640, which was a video that was shot by somebody else,

but it showed you and Mr. Finicum and a couple of other people

down in the basement, going through some -- or pointing out

some artifacts down there.

Do you remember that video?

A. Yes, I do.

Q. Was that in the basement of the building that you were

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 83 of 262
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staying in?

A. That's correct.

Q. And was there in fact rat feces and rat nests, and whatnot,

in, amongst those artifacts?

A. There was, yes.

Q. And -- now, that was with Mr. Finicum.

When you were there with Mr. Finicum, did you get to

know him a little better?

A. I did. I got to know him a little bit better.

Prior to me being out there, I didn't know he was --

he was bald. He always had a hat on in all of those videos.

And so I did get to spend a little bit of time -- not

too much because he was always out and about doing his things.

But I got a general sense about who he was.

Q. Okay. And, you know, did you come to like him as a person?

A. I did. I thought he was -- he was a very great guy. He

was a -- very passionate about trying to, you know, fight

against corruption. And he loves this -- his country a lot,

and he was upset about how it's going.

Q. Just briefly, about Fukushima.

Did you actually ever get a chance to talk about that

when you were out there?

A. I did. I had an interview with The Oregonian, I think it

was. And I briefly got to talk about it. But it didn't come

out as well as I had hoped. They weren't interested in

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 84 of 262
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Fukushima. They were more interested in trying to ridicule me.

Q. Okay. Now, we heard testimony from a young man by the name

of Nick Bleuler or Buler (phonetic) -- I can't remember how he

pronounced his name. But, among other things, he testified

that he saw you with a Mossberg shotgun.

Did you carry such a gun?

A. I did not.

Q. Did you carry any kind of shotgun?

A. I ended up picking up a shotgun after LaVoy was killed.

And I found this shotgun in the bunkhouse, in one of the

abandoned rooms.

Q. Okay. But just to get back to that question, that was

after Mr. Finicum got shot. 

Before Mr. Finicum got shot, did you ever carry

around with you a shotgun or a rifle?

A. I did not. No.

Q. Any kind of -- something that Mr. Bleuler might have

mistaken you for, as having a shotgun or a rifle of some kind?

A. Absolutely not.

Q. Did you come out to the refuge to prevent U.S. Fish &

Wildlife employees from doing their job?

A. No. They -- they -- employees never was brought up as a

discussion. It was just about policies, in general.

Q. Now, in that -- that video -- that was, again, Government

623, where you're sitting at Mr. Curtis's computer, you refer

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 85 of 262
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to that as being a BLM computer. Do you remember that?

A. (Nods head.)

Q. Yes?

A. I did.

Q. Okay. And have you heard evidence in this case that it was

actually the U.S. Fish & Wildlife that maintained that refuge?

A. I just assumed everything was BLM. I wasn't even aware

that U.S. Fish & Wildlife was involved until after we were

charged.

Q. Did you have an understanding that whoever's desk that was,

that that person would be coming back to work someday?

A. I did. I -- you know, after -- after, obviously, being

there, you know that there's someone working there. You know,

got a picture of his daughter in the little lady bug uniform.

And so I kept the place as really nice and tidy, as I could, as

possible.

And as far as the computer, I made sure, you know,

that I wasn't damaging it. So when he did come back, he would

have a computer to use and with nothing being damaged.

Q. You said you thought this was all the BLM. Did you have

the intention of preventing any BLM employees from -- from

coming to do their work through force, threats, or

intimidation?

A. I did not.

Q. Was it your conscious desire to do that?

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 86 of 262
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A. It was not. I was just there as part of a protest.

Q. Did you ever have any conversations with anyone about

preventing U.S. Fish & Wildlife or BLM employees from doing

their job?

A. Again, the employees -- just -- that conversation never

occurred, that people were there to keep people from -- from

working.

Q. So, generally speaking, before January 26, what kind of

stuff would you be doing through the course of a day? A normal

day?

A. Well, besides -- you know, at the end of the day, people

would bring to me, you know, their little flash drives, and

whatnot, that had the videos and pictures that they needed to

upload.

And so I would have to compress them. Because

normally a raw video is -- is a very, very large file. And so

you have to compress it to a smaller size to upload it. And so

I would be up, you know, running those.

And while those computers were running -- because

sometimes they take an hour or more to compress -- I would be

over at the bunkhouse, and I would be chopping wood. I helped

wash some dishes. And that's all I can think of at the moment.

Q. Okay. The Government has -- again, going back to those

Facebook posts, there was a message in Government Exhibit 59, a

summary of your Facebook posts. A message that you sent to a

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 87 of 262
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Derrick Fry. Looks like maybe the early hours of January 26.

Who is Derrick Fry?

A. Derrick Fry is my -- my uncle.

Q. Okay. Where does he live?

A. He lives in Ohio, as well.

Q. Okay. And the message reads: "No man, I'm here at the

wildlife refuge, armed protest, took over this

wildlife refuge."

Do you remember what he had sent to you that -- were

you responding to a message that he had sent to you?

A. Yeah, he asked what I was doing. I guess he must have

heard something from a family member. But I told him I was

here over in Oregon.

Q. Okay.

A. And he says, "What are you doing over there? Are you

chopping trees?

And I said, "No. I'm just here at this armed 

protest, and at this -- this wildlife refuge." 

You know, "We're occupying it." 

Q. You said, "Armed protest"?

A. I did.

Q. Were you yourself armed?

A. I was not.

Q. But were others having their firearms?

A. There was other people with their arms, yes.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 88 of 262
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Q. And you said, "took over this wildlife refuge."

Did you yourself take over this wildlife refuge?

A. No, I -- I don't -- I didn't take it over. I was occupying

it.

Q. Okay. I have another document I want to show you.

Again, this is not for the jury. But it's Exhibit

2615.

Mr. Fry, without reading this, could you please tell

the jury -- well, read it if you need to to refresh what your

recollection is. But can you tell us what this is?

A. Yes. So with all of these Qurans that were being sent over

there. There was one -- you know, there was a couple of

discussions about, you know, the Muslim faith --

Q. Mr. Fry, I'm going to interrupt you. Just -- is this your

handwriting in this note?

A. It's my scratch -- scratch -- scratch writing. Yes, it is.

Q. Okay. So you wrote this note?

A. I did.

Q. When did you write it?

A. This would be on the -- it would probably be around the

23rd.

Q. Okay. And did you write it at the refuge?

A. I did.

MR. OLSON: And, your Honor, I would ask that this be

published now, Exhibit 2615.

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MR. KNIGHT: For the limited purpose of demonstrating

the witness's state of mind, we don't object.

THE COURT: The objection is sustained. It's in for

that limited purpose, Members of the Jury. 

Go ahead.

MR. OLSON: All right. Thank you.

BY MR. OLSON: 

Q. Mr. Fry, could you just go ahead and read this letter to

us. And then I'm going to ask you to explain the circumstances

that lead to this. Okay? So go ahead and read it to us first.

A. So it says, "Hello, everyone. I'm sorry I couldn't

stick around as long as I wanted. I just feel

like there isn't much for me to do. I never

should have cared. Caring is my weakness, and

with it I will go." And I said, "bye," and "you

can have all of my stuff."

Q. What led to the circumstances that led to you writing this

letter?

A. Well, I was very upset, you know, again, with the, Muslim

conversation that came up. There was this -- at the fire pit,

there was a conversation with this guy.

He -- I was trying to explain to him that not all

Muslims are evil terrorist people.

And he was like, no, the only good Muslim is a dead

Muslim. And I absolutely -- I really hated that comment, and I

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didn't want to be around this person anymore. And I found it

hypocritical that this guy's trying to talk about preserving

the Constitution and be so against the First Amendment right to

have everybody believe what they want.

And so I just was thinking about leaving, but I

wasn't really -- this was more of a stress relief, where I was

just like -- ah -- and I crumpled it up and threw it in the

trash. But I didn't leave.

Q. Okay. Was there a moment that you were thinking about

leaving?

A. It crossed my mind, you know, because I really didn't want

to be -- I -- I didn't want to be involved in any kind of

crusade. But, you know, it wasn't -- there was no defendant

here who's anti-Muslim, or anything like that. It was just

like two or three people that -- that were like that, and I

didn't want to be around that really. But I realized, you

know, I overreacted, because it's not like the majority of the

people there were like that. It was just a few.

Q. Mr. Fry, did you attend any meetings at the refuge?

A. I did not attend them.

Q. I was going to say, you know, any meetings where it was

discussed about plans or organization around the refuge?

A. No. There was -- I didn't attend any meetings.

Q. Were you invited to any such meetings?

A. The only one I was invited to was the one that LaVoy

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went -- was going to.

Q. Okay. Well, we'll get to that in a second.

But there was -- we saw the video, somewhere along

the lines here, of a church service, where there was music

played and so on. Were you at that?

A. I was at the church service, yes.

Q. Okay. So you socialized some with the folks that were

there?

A. Correct.

Q. But as far as can you recall, you don't recall any meetings

where future plans were discussed or tasks were delegated, or

anything like that?

A. Yeah, I wasn't at any -- anything that I would hear about

what their plans was. I wasn't aware of any -- the cameras

being taken down until after they were taken down. You know,

the fence thing, I didn't even know about that until the media

was playing it.

And so I wasn't -- I wasn't invited to anything

that -- where they showed plans, yes.

Q. Okay. Now, January 26, did Mr. Finicum send you a text

message that day, asking you to attend a meeting?

A. Yes. I did get his text message. It was -- I think -- I

think my phone was set still to three hours because -- from

Ohio. And I think it said 12 o'clock, or one o'clock, but it

would have been sent three hours before that, if it was here.

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But he asked me if I wanted to come to this meeting with --

with the sheriff, I think it said, so I could record it.

And I missed that message because I was helping Lee

Rice fix his cell phone and his computer.

Q. And Mr. Rice touched on that in his testimony a couple of

weeks ago. Is that right?

A. Yes.

Q. So if you had gotten that text message and if you had seen

it, would you have gone along with Mr. Finicum to that meeting?

A. Yes. I would have been in that truck.

Q. So what time was it that day when you first heard something

had happened?

A. This would be more towards the evening because -- when I

did see that text message, I responded, like four hours later.

And I said was it too late to join that -- you know, go with

you guys? And I never got a response back.

And it was probably around 6:30 -- 6:00, 6:30 that we

found out that they were fired upon and -- and he was killed.

Q. Okay. And, initially, what did you hear? Did you know

that he was killed?

A. Well, actually, I didn't know he was killed, but we just

heard that two people were shot. And this was coming through

Pete Santilli's live feed. And he was saying, You know,

there's -- two people were shot. One -- they're in the

hospital. And, you know, they're preparing their vehicles, and

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 93 of 262
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they're coming to raid the refuge. Along --

Q. That was Mr. Santilli that said that?

A. Mr. Santilli, yes.

Q. Okay. And then, as time went on, did you learn that it was

actually Mr. Finicum that had been shot?

A. Yes. This came in probably -- maybe an hour later. Hour

or two later.

Q. Did you learn that he had been killed?

A. Yes.

Q. And do you recall how you heard that? Was that just kind

of the general talk, or do you recall specifically somebody

telling you that?

A. It was -- I'm trying to figure out where it came from. I

don't recall exactly.

I'm thinking -- because I know Pete was arrested

shortly after, so it wasn't from him.

Q. But, nevertheless, you -- you learned this.

And did you also learn that the FBI -- or did you

believe -- that the FBI was -- was coming to the refuge?

A. Yeah. We were told they were coming to the refuge to

assault us, in a sense.

MR. KNIGHT: I'm going to object to hearsay on

that --

THE COURT: The objection is sustained. Jurors,

disregard the answer.

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Ask another question, please.

BY MR. OLSON: 

Q. Did you specifically talk to Mr. Banta? Did he tell you

anything about the presence of FBI people?

A. Mr. Banta and -- I came to --

Q. Let me ask you this question.

A. -- an understanding -- okay.

Q. Based on your conversation with Mr. Banta, what was your

understanding, as far as the presence of FBI people?

A. My understanding is that Mr. Banta spotted like 20 -- 20 or

more vehicles heading our direction.

Q. Okay. And were you aware that the FBI was -- was calling

in to try to get people to get out of there?

A. Blaine Cooper had spoken with the FBI and --

MR. KNIGHT: Object to hearsay, your Honor.

THE COURT: The objection is sustained. Please

phrase your questions carefully to call for this witness's

state of mind and not hearsay.

MR. OLSON: Sure. 

BY MR. OLSON: 

Q. What was your understanding as far as the FBI's desire to

have folks get out of there?

A. The FBI had said that everybody was allowed to leave, but

rumor was that people were being arrested as they were leaving.

And so --

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Q. Okay. And was there actually -- do you recall an FBI

agent, Agent Luh, actually calling your phone?

A. That's correct. This -- Agent Luh called my phone and

asked me to hand the phone to Blaine Cooper.

Q. Okay. Now, he's testified that you made a statement along

the lines of, well, we're waiting for to you come in and murder

us, or something like that. Do you remember saying that?

A. That's correct, yes.

Q. So he had your phone number. Had -- had any FBI agent,

before January 26, called you to tell you to -- you should

leave the refuge?

A. No.

Q. So the FBI -- you learned that the FBI was -- was asking

people to leave, telling people to leave.

Why didn't you leave?

A. I was -- generally speaking, I was -- I was very upset

about what had happened. All of the other camera people were

either arrested or -- or left. And so I was the last one there

that had any kind of camera skills. And so I felt it more of a

duty, also, to stay behind because there was a whole bunch of

people that were still there. Like 20, maybe. Something like

that.

Q. And as things kind of shook out through the night, people

were leaving.

How many people ended up staying that whole night?

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A. That whole night, it -- it dwindled down to about 15

people, though. So there was still 15 people, or so, all

scattered about. And so I was just trying to record basically

what was happening.

Q. And, of course, we've seen some of that in the government

exhibits.

But you said cameraman, and I think you also used the

term "live streaming." We've heard about that.

A. Mmmm.

Q. What was your goal in live streaming that night?

A. My goal was -- you know, there was two reasons that I

wanted to live stream that event. Was because if the FBI or

the government -- whatever you want to call them -- if they're

watching that they're being watched -- you know, if they know

that all of these Americans are watching, that they would be

less likely to go in and do something that they would feel

humiliated by. And if they did attack, you know, then at least

people would understand -- get to -- probably see a different

perspective than -- than what would be told by, you know, the

winning force.

Q. Okay. So if everyone else had left that night, would you

also have left? Or would you have remained as the only person

staying there?

A. Well, I would have left if everybody left, yes.

Q. And did you continue to do that, into the next -- that

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 97 of 262
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night and into the next day? This live streaming stuff?

A. Yes. I kept that live stream running because we really

thought they were coming in to -- just come in and kill us.

Delt -- understanding was Delta force team was

coming, you know, and -- going to come and slaughter us and

stuff.

Q. So, Mr. Fry, you're very calm today. Right?

A. Yes.

Q. January 26th, you weren't so calm. Right?

A. I was -- I was -- I was a little bit losing my mind, in a

sense (laughing) because I -- I thought -- I don't know.

Maybe -- I guess everybody reacts differently when they feel

like their life is about to be extinguished. I mean, I don't

think I was being crazy but maybe not completely sane.

Q. So you've seen Government Exhibit 673, which is the one

where you're kind of walking around the buildings. You have

got a shotgun over your shoulder. Correct?

A. Mmmm.

Q. And you're -- you said something along the lines of you're

going to watch me die live on Defend Your Base.

A. Right.

Q. That was nine months ago, basically?

With the benefit of time and reflection, what's your

reaction now, in seeing that?

A. Well, now, looking back at all of that stuff, it -- it's

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 98 of 262
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actually quite embarrassing, to be honest.

You know, reading some of the -- actually, if you

caught on, I was screaming -- I screamed one time, allupbar

(phonetic), as a joke, because there's this guy who made a

comment, and I just thought it was funny at the moment.

You know, at the time I just thought we were going to

die. And I really didn't think what people were going to think

of me in the future, and so I was just being loony.

Q. What do you think of this diagnosis that Dr. Guyton has

given you of schizotypal personality? What's your -- what do

you make of that?

A. Well, I -- I feel more comfortable with that than -- I've

previously been diagnosed with schizophrenia, which was a

misdiagnosis. And it makes more sense because I'm not

constantly delusional. You know, I'm quite sane almost all of

the time. It seems to be a pattern that, when under extreme

situations, that I might act funny. But -- but that's -- I

don't see it as -- as -- as anything bad, I guess. I don't

know.

Q. Okay. Has it provided some insight to you as to

understand, you know, a little bit about yourself and your

life?

A. Yes. I -- I tend to -- it's hard to say because a lot of

the things that I've experienced in my life -- you know, I

don't want to consider it a mental illness. I'm a spiritual

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 99 of 262
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person. And you can't quite explain those things in any

medical fashion. And so I think it kinda gets -- tends to be

classified as a mental illness. You know, I sometimes like to

believe what I hear is -- is an angel, you know. I don't want

to believe is as a disease.

Q. Okay. That rifle that you were carrying around with you

that night --

A. Mmmm.

Q. -- did you carry it with the intent to prevent employees or

officers of the U.S. Fish & Wildlife or the BLM from doing

their jobs?

A. No. I think it should be quite obvious that, you know, it

was a response to being attacked -- or thought to be attacked

by the FBI.

The Fish & Wildlife and BLM were not even on my mind

at -- when I was holding that gun.

Q. Okay. And you touched on earlier -- I interrupted you.

But where did you get that gun? Where did that come from?

A. Okay. So when everybody had started fleeing on the 26th, I

walked into one of the abandoned rooms and I found this shotgun

on the ground there by the bed post. And so I picked that up

and found the little shotgun carrier thing, belt (indicating

with fingers). So I grabbed that too.

Q. Okay. Did you sleep at all that night?

A. I did not.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 100 of 262
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Q. Where did you spend the night?

A. We had left -- a lot of us had left that -- I guess the

refuge, in a sense. And we went over to what was called the --

what we called it as the west encampment.

And so this would be like the parking lot of the

refuge, I guess.

Q. Sure.

A. And we stayed there, the whole night and waited to be

killed. We didn't even go to bed.

Q. And is that where you stayed all subsequent nights, all the

way up to the end?

A. Yes.

Q. In that little corner of the parking lot?

A. That's correct.

Q. And why did you do that?

Why didn't you continue to just stay where it was

nice and warm in the buildings?

A. Well, we felt that it would be better to, you know, leave

the refuge. You know, we actually had packed all of our

things, our belongings. And we were -- we were ready to go,

but we didn't feel safe to go. So we just kind of --

Q. But as time went on, you know, why did you -- I mean, this

is the middle of winter, freezing cold --

A. Um-hmm.

Q. -- why didn't you just go back into those buildings and

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 101 of 262
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stay there?

A. We just didn't feel like it was -- we felt like whatever

they were coming after us for was because obviously we were

occupying the buildings. And so we wanted to show we were no

longer part of this protest, and that we weren't trying to

occupy anything anymore.

So we -- we left and we had all of our things ready

to go.

Q. And you knew that -- that first night, you knew that the

Bundys had been arrested. Correct?

A. That's correct, yes.

Q. And Ms. Cox?

A. Yes.

Q. And so -- okay. Did you know why they had been arrested?

Or what specifically they had been charged with that first

night?

A. I -- I would like to believe that we did know what they

were charged with, which caused us to get away from those

buildings. But I'm not 100 percent sure.

Q. Okay. All right. Now, into the next day, January 27th, I

want to ask you some questions about some -- some -- some

people that have been mentioned here in the course of this

trial.

Were there some individuals who showed up in the

immediate time period before you had heard about Mr. Finicum's

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 102 of 262
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death?

A. Yes. There was these -- what we now call them as the Navy

SEALs guys.

They had shown up, I think, just -- maybe half a day

before LaVoy -- the whole LaVoy thing came on the 26th.

Q. How did they show -- what kind of vehicle were they driving

when they showed up?

A. They showed up in an old -- really, one of those older RV

campers. The little -- where you -- it has a little -- you can

sleep inside of them.

Q. Okay. Did you know why they showed up? Or did they seem

out of place at the time that they showed up?

A. They did. They seemed very out of place.

Q. All right. And in the Government's case we've heard

some -- some -- some evidence of some damage, and so forth.

Based on your observations of -- of these

individuals, do you have an opinion as to how that damage --

MR. KNIGHT: I'm going to object to the form of the

question. He can testify to what he saw but not an opinion

about what they did.

THE COURT: (Nods head.) All right.

MR. OLSON: I'll rephrase that, your Honor. 

BY MR. OLSON: 

Q. We've heard about some damage done to the door of Carla

Burnside's office.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 103 of 262
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A. Correct.

Q. That night, on January 26th, did you see that door when it

was intact and not damaged?

A. I did. I was driving on a four-wheeler. And when I was

driving towards the west encampment -- and this would be on

the -- mid-morning of the 27th, or so, they were still there.

And on my way back from the bunkhouse, collecting

drinks and stuff, I drove past them. And he was walking

towards --

Q. You say "he." What do you mean?

A. The --

Q. One of these guys?

A. The navy -- the big bearded Navy SEAL guy.

Q. Okay.

A. And so I drove past Burnside's building because -- like --

there's a little sidewalk there. So you cut in through that

and take a left.

And I drove past that door, and it was intact. There

was nothing wrong with it. And later in the day, coming back,

that door was kicked in. And he was still around in that area.

Q. When you say "kicked in," how -- how do you know it was

kicked in, versus just open or something?

A. Well, you can see how there was the wood splints -- so the

wood has splintered. And so there was wood particles all over

the place and it's broken. And there was nobody else down

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 104 of 262
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there except for him.

Q. Okay. All right. Did those people leave that day, on the

27th?

A. They did. Like towards the afternoon.

Q. All right. There's a trench that was built by your

encampment there.

Did you build that trench?

A. I didn't build it. There was two other people who were --

Q. Was that your idea to build that trench?

A. It was not.

Q. Did you come to understand what the purpose of that trench

was?

A. At the time, I didn't know what they were doing, why -- I

mean, I guess I'm just assuming that it was for some sort of a

defensive position in response to thinking they're going to be

killed.

Q. Okay. Did you continue to live stream throughout that day,

the 27th?

A. Yes.

Q. And one of the Government's exhibits shows you holding a

different gun. This time a gun with some stickers at the end.

Do you remember that one? I believe it was Government 670?

A. Yes.

Q. Was that your gun?

A. It was not.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 105 of 262
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Q. Where did you find that gun?

A. That -- that was actually handed to me because --

Q. Okay.

A. I was using the shotgun, and he told me, "It's not good at

long distance," and so he was like, "Here, use this."

Q. Who's "he"?

A. I think it was Sean.

Q. Okay. Did you ever carry a round -- a rifle referred to as

a Mossberg shotgun?

A. I -- I never carried any gun called a Mossberg.

Q. And -- and so, as far as you know, you're not depicted in

any of the live-streaming videos you shot, holding a Mossberg?

A. That's correct.

Q. In that same exhibit, 6 -- 670, there's a moment where you

kind after approach the screen and you say, "Free the

Hammonds."

A. Mmmm.

Q. Where did that come from? Why did you say that at that

point in time?

A. And so -- I said that because -- in a lot of my videos,

you'll see that I was reading from the comments. And so one of

the comments made was "free the Hammonds" and "free the

Bundys."

And so I just kind of parroted what he said.

Q. So you were reading a comment, basically?

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 106 of 262
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A. Reading it, yeah.

Q. Okay. Now, do you remember talking to Agent Maxwell that

night?

A. Yes.

Q. And this was Government Exhibit -- excuse me -- 15. Where

were you basically -- he was trying to get you to come out.

Right?

A. Mmmm.

Q. And you and the others were expressing some suspicion over

that because of the manner in which Mr. Finicum was killed.

Right?

A. Right.

Q. You had mentioned before that you had actually packed up

and you were ready to go.

Were you -- were you all packed up and -- and ready

to go at that -- at that -- during that day?

A. Yes. Yes. We were all -- we had all packed our things and

we were ready to go. But, again, nobody -- I think it was --

the Andersons who -- they never even got the word that they

were able to leave.

Q. Well, you don't need to get into that right now.

But through the course of that day, did everyone else

leave? All of the other 15 or 20 people that you were talking

about?

A. Through the course of the day --

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Q. Or maybe the next day? I don't --

A. There was. There was people who have left. I think it

was -- Duane Ehmer left fairly -- maybe 1:00 or 2:00 in the

afternoon.

He -- he actually came back, and he told everybody,

"Hey, you guys are okay to leave." So -- he's like, I'm -- if

anybody wants to come, you know, come on along.

And he actually left, and we actually saw in the news

that he was arrested when -- when he left the second time.

Q. Okay. So -- but was there -- you say that you were all

packed up and ready to leave. Why didn't you just leave? What

happened? Was there something that happened with respect to

Mr. Anderson?

A. Right.

Q. Or his situation?

A. Mr. Anderson was told that he wasn't allowed to leave.

MR. KNIGHT: Your Honor, I'm going to object to the

hearsay there, your Honor.

THE COURT: The objection is sustained. Please

rephrase.

MR. OLSON: Okay.

BY MR. OLSON: 

Q. Well, did it become apparent that -- that Mr. Anderson was

going to be charged and arrested with -- for an offense?

A. Yes.

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MR. KNIGHT: I'm going to object to the basis.

Saying the witness has an understanding of something that's

based on hearsay is no different than hearsay.

THE COURT: The objection is sustained.

THE WITNESS: Well --

BY MR. OLSON: 

Q. Did you have an understanding that Mr. Anderson came to

be --

A. I talked on the -- on the phone with the FBI agent about

that.

Q. Okay. All right. So what was Mr. -- initially, was anyone

else told that they were going to be charged or arrested?

A. No. It was just Sean Anderson at that time.

And they said -- the FBI said that you guys are all

free to leave except for Sean.

Q. Okay. So what was -- was Mr. Andersen willing to just go

ahead and be arrested?

A. No, Mr. Andersen -- he was very upset by that. He felt it

was --

MR. KNIGHT: I'm going to object to the speculation

on the --

THE COURT: The objection is sustained.

Disregard the question and the answer. Please

rephrase.

BY MR. OLSON: 

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 109 of 262
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Q. Okay. Mr. Anderson did not turn himself in to be arrested.

Is that right?

A. That's correct.

Q. And what was Sandy Anderson's position?

A. Sandy would not leave as well because it was her husband.

And she wasn't willing to leave him to be arrested.

Q. So, given that your situation, what was your position?

Were you ready to leave with -- with these people not willing

to leave?

A. I was not willing to leave unless everybody was going to

leave because, again, I was the only person with this camera.

And I was worried that if people were to stay behind without

any monitoring of what -- what's going on, that the Government

would come in and -- and kill them and try to cover it up, or

something.

Q. So in staying, at that point, was it your intent to prevent

U.S. Fish & Wildlife or BLM employees from coming back to work?

A. It was not.

Q. Did Mr. Banta ever say that he wanted to prevent U.S. Fish

& Wildlife employees or BLM employees from doing their job?

MR. KNIGHT: Object to the hearsay of Mr. Banta on

this point.

THE COURT: The objection is sustained.

BY MR. OLSON: 

Q. Did Mr. Banta also have a distrust of what the FBI might

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 110 of 262
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do?

A. Mr. Banta did have a distrust. Everybody had a very strong

distrust with the FBI.

Q. Now, eventually, you are told that you're -- you're going

to be charged and arrested as well?

A. Yes. Later, they ended up charging all of us, yes.

Q. All right. And did you guys have a conversation about --

what was your idea about, you know, whether you should all

continue to stick together versus people make their own

individual choices?

A. Well, originally, you know, we all wanted just to leave

together. We didn't want to leave anybody out there by

themselves. So we decided that it was safer to stick together

and -- and kind of see what happens that way, because --

because then it's -- you know, if you're in a group, you're

less likely to be just killed, I guess.

Q. Now, obviously, they didn't come in and kill you the first

night or the next day. Right?

A. No, they didn't. They did not.

Q. And you -- you didn't necessarily continue to do all of

that live streaming. Right?

A. Eventually, my -- my phone got cut off. The FBI had cut my

phone service.

Q. All right.

A. And --

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Q. Were there drones flying around?

A. There was. There was this little remote controlled little

airplane thing that they would fly over our heads at night, and

it would scare the crap out of us. Be making lots of noise.

And so I ran out there with a spotlight and spotted

it. And -- and I guess that's what it was.

Q. Did the presence of those drones contribute to your

suspiciousness?

A. Yeah, I was -- I didn't know what kind of -- what those

things would do. You hear about predator drones, and stuff

like that. So we don't know if it's got -- built bombs on it,

or anything. We didn't know.

Q. So you mentioned at some point they took away your cell

phone service. Is that right?

A. They did.

Q. And did they provide you with a separate phone or a new

phone that you could communicate with them?

A. Yeah, the -- the excuse that they gave to cut my phone off

was that they heard my charger wasn't working.

And so they cut my phone off and provided me with

this little FBI flip phone, Verizon.

Q. How did they get that to you?

A. They -- they put it inside the cab -- like the seat area of

the excavator that was at the front gate.

Q. Okay.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 112 of 262
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A. And before they cut my phone off, they called my phone and

says -- and said, you know, that we have this other phone over

at the front gate. And, you know, we want you to go over there

and grab it. And it looks like a little cocaine package. And

so they -- that's what they said.

Q. Okay. And after they gave that to you, did they -- did one

of the FBI agents make a statement to you that -- that kind of

increased your -- your sense of suspicion or paranoia or fear?

A. Yeah.

Q. Do you recall that?

A. The FBI was telling me, you know, that -- something along

the lines -- like -- well, she said -- she said you saw how

close we were to you. You saw how close we were to get -- to

be able to get to you. You know. And so she -- she was

implying that there's these FBI people, you know, sneaking

around at nighttime, and stuff, around us.

Q. Okay. So were there a few days there where you didn't have

access to social media and then the Internet, and so forth?

A. That's correct.

Q. Were you ultimately able to work around that?

A. Yes. I was able to find someone's mobile hotspot that they

had left behind.

Q. And so did you go back to live streaming or -- or -- or

shooting videos, and so forth, and posting that on your YouTube

channel?

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 113 of 262
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A. That's correct.

Q. Now, during this time that you were at the refuge, were you

receiving a lot of negative comments from people about you

potentially getting raped in prison?

A. Yes. I -- ever since I released the very first video of me

being there, I was being bombarded with these comments of how I

was going to be raped in prison, and -- and all kinds of really

horrible things that they were going to do to me there.

Q. Did you take those seriously early on?

A. Early on, I did not. At the time, I really didn't think we

were -- it was really a crime. I thought it was just a

protest. But as the event unfolded, and now we're being told

we're going to be charged, that threat, that idea of going to

prison became more of a reality. And so I started really

taking that serious.

Q. And so were those threats kind of getting worse as time

went on, especially after you know that you're going to be

charged?

A. I wouldn't say they got worse. I mean, they were always

really bad.

But just towards the end, I started taking more

notice, I guess, up -- to that stuff.

Q. And we've created an exhibit. 

MR. OLSON: Can you bring up 2616.

Yes. Don't publish yet.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 114 of 262
 115 Fry - D - By Mr. Olson

BY MR. OLSON: 

Q. Mr. Fry, would you look at 2616, and tell us what we're

looking at here on the first page.

A. So this is one -- this is just some of the comments that

you would see in this -- the comments section of my videos I

would post.

Q. So -- at the top there is -- what is that? Is that a

screenshot?

MR. SCHINDLER: Your Honor, I apologize. I'm sorry

to interrupt the proceedings, but we've lost screens here.

This whole section of the room --

THE COURT: When did that happen?

MS. MAXFIELD: Just now.

THE COURT: Just now?

How much longer on direct? Mr. Olson, just give me a

sense --

MR. OLSON: 15 minutes.

THE COURT: Then I think we might as well take the

morning recess.

We can take up this technical issue, and we'll

continue after the break. With the same instruction, ladies

and gentlemen. Please do not discuss the case. Leave your

notes here. Enjoy 15 minutes, and we'll be back to you.

My plan is for the lunch break to be around 11:30, or

so, and a logical break in the evidence for as long as you

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 115 of 262
 116 Fry - D - By Mr. Olson

need. And then we'll come back. And then the plan to adjourn

at the end of date is around 2:30-ish. Okay?

Very good. Watch your step. 

Let's all stand for the jurors.

See you in a bit.

(Jurors exit at 10:38 a.m.)

THE COURT: So let's be seated, please. While we're

in recess, I trust our IT specialist will work on the screen

issue.

Mr. McDonald, I can get an update from you and

Mr. Bundy in ten minutes, after the recess -- short recess.

Unless you have something on which you need direction right

now.

MR. McDONALD: I have no progress report for the

Court.

THE COURT: Okay. Well, then I'll check in with you

after recess. 

Everybody stay seated, please, as Mr. Bundy,

Mr. Bundy, and Mr. Fry leave.

Mr. Fry, you can step down, obviously.

(Pause.)

THE COURT: Okay. We're in recess. We will be back

in session in 10 to 15 minutes, as soon as everybody's ready.

(Recess taken at 10:40 a.m.)

THE COURT: So, I would like to just note

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 116 of 262
 117 Fry - D - By Mr. Olson

Mr. McDonald and Mr. Bundy and Ms. Ludwig have been conferring.

Is there anything I need to be addressing before I bring the

jury in? Are you still talking?

DEFENDANT RYAN BUNDY: We're just about finished

here. But we've gone over a list of names, and I think we're

going to be okay.

THE COURT: Okay. Mr. Mumford?

MR. MUMFORD: I think the next witness, your Honor,

after Mr. Fry, is Mr. Duane Schrock.

THE COURT: Okay.

MR. MUMFORD: I expanded my proffer to the Government

this morning and just explained that I do anticipate getting

into -- if your Honor will remember, there's exhibits --

Government Exhibit 50 and 51.

Those were the videos of the -- of Ms. Shawna Cox and

Mr. -- Mr. Bundy were in there, in the office. And I think

they were showing it to talk about what they were -- was in the

office. And Mr. Schrock is actually one of the participants in

that meeting. He's the voice off-camera, and just

explaining -- I'm going to have him explain what the meeting

is.

If your Honor will recall, I tried to get additional

clips played --

THE COURT: Let me just see if there's an issue from

the Government, without you having to tell me. Unless there's

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 117 of 262
 118 Fry - D - By Mr. Olson

an issue, I don't need to know this. I'll just hear all of

this out.

Is there an issue?

MR. GABRIEL: Your Honor, we don't have any issue

with Mr. Schrock explaining the meeting briefly. But it is,

generally -- in terms of the proffer -- being offered so that

it could reflect on Mr. Ammon Bundy's state of mind that he had

support from the community. And I think that's been --

THE COURT: So we'll just take Mr. Schrock, and we'll

take any objections as they come.

MR. MUMFORD: All right. Thank you.

MR. GABRIEL: But we're not playing the videos, as I

understand it.

THE COURT: Just to show -- long enough to get the

voice in the background to establish his -- his basis of

knowledge --

MR. GABRIEL: (Nods head.)

THE COURT: -- without replaying the content.

MR. MUMFORD: That's right.

THE COURT: So you think about 15 more minutes, yeah?

MR. OLSON: Maybe a little more, just because -- if

I'm judging right --

THE COURT: And other defendants with Mr. Fry? Give

me an idea. I need a case management assessment here.

MS. MAXFIELD: (Shakes head.)

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 118 of 262
 119 Fry - D - By Mr. Olson

THE COURT: Anybody?

MR. MUMFORD: Minimal, your Honor.

THE COURT: So we should be able to conclude Mr. Fry

right around the lunch break.

I was going to raise it just because normally I

wouldn't want the defendant moving with marshals walking next

to him in the jury's presence. But it looks like we'll -- we

can just avoid that and take a break when it's finished.

We're assuming the lunches will be here around 11:30.

Is that right?

So let's just plan on taking a lunch break when

Mr. Fry is finished, and then we'll reorganize for what comes

next, after a short lunch break.

So everybody here?

Yes, let's all stand, then, for the jurors.

(Jurors enter at 10:55 a.m.)

THE COURT: I'm sorry. Did we get the monitor issue

fixed?

DEFENDANT SHAWNA COX: (Nods head.)

THE COURT: Thank you.

All right. Everyone, please be seated.

All set, jurors?

THE JURORS: Yes, ma'am.

THE COURT: Mr. Olson, you may continue.

MR. OLSON: Thank you, your Honor.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 119 of 262
 120 Fry - D - By Mr. Olson

Mr. Fry, I skipped over something that I want to go

back to, on the 27th.

BY MR. OLSON: 

Q. Do you know who Victoria Sharp was?

A. Yes, that was the lady that was with -- with the people in

the van -- or the truck that LaVoy was killed --

Q. And on January 27th, did you hear an audio recording of an

interview that Ms. Sharp gave?

A. Yes.

Q. And let me just -- was there anything that she said that

affected your mindset, in terms of contributing to your sense

of fear or suspicion towards the FBI?

A. Yes. What she said really actually freaked us out quite a

bit. You know, she was saying --

Q. Did she describe what happened?

A. She described what happened. That, you know, Mr. LaVoy was

shot multiple times, even while he was on the ground.

MR. KNIGHT: Your Honor, I'm going to object to

further characterization of this, even as to state of mind. He

said it freaked him out.

THE COURT: The objection is sustained.

He may talk about his state of mind without

recounting matters that go beyond the scope of what the jurors

have already heard. I'll simply remind the jurors that the

circumstances surrounding Mr. Finicum's shooting are not the

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 120 of 262
 121 Fry - D - By Mr. Olson

subject of this case. Just the fact of the date of and its

impact on the state of mind of others.

Go ahead.

BY MR. OLSON: 

Q. Okay. So you were freaked out by it. You were concerned

by this? What she said?

A. Yeah, we were -- we were -- it sounded barbaric, from the

way she was explaining it, yes.

Q. Okay. Now, let's go back to 2616.

MR. OLSON: And, your Honor, during the break, I

think the Government said we can go ahead and publish this. So

I would offer Exhibit 2616 at this time, and ask that it be

published.

MR. KNIGHT: Just for the limited purpose we

discussed, yes.

THE COURT: I don't know what that means.

MR. KNIGHT: Sorry. Not to admit but to refresh the

witness's state of mind --

THE COURT: So it's for the witness only?

MR. KNIGHT: No. I'm sorry. Not to be admitted but

to be published for the purpose of corroborating the witness's

state of mind.

MR. OLSON: Well, I guess I had a different

understanding, your Honor, as to whether this would actually go

back to the jury, which was my intent.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 121 of 262
 122 Fry - D - By Mr. Olson

So let me just lay a foundation with Mr. Fry.

THE COURT: Go ahead.

BY MR. OLSON: 

Q. Mr. Fry, again, what is -- what is this? Page 1, here, of

this 2616?

A. This would be some of the comments that I would see on my

YouTube channel.

Q. Okay. And at the top of the screen there is what? That

picture?

A. That's -- that's us inside what we later deemed as our

little camp called Camp Finicum.

Q. I didn't mean what the actual picture was but is that a

screenshot of something there at the top?

A. Yeah. That's a screenshot of -- of video from my YouTube

channel.

Q. All right. And what do we see underneath that?

A. And underneath is the comment section.

Q. All right. And from the subsequent pages that follow this,

why don't we --

MR. OLSON: Why don't we go ahead and go to the next

page. And then the next page. And then the next page.

BY MR. OLSON: 

Q. Does it follow the same kind of pattern of showing a

screenshot of a video, and then comments underneath it?

A. Yes.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 122 of 262
 123 Fry - D - By Mr. Olson

Q. And are these comments related to the issue of threats of

being sexually assaulted?

A. Yes, they do.

Q. And were these comments that you saw, when you were at the

refuge, in response to these videos that you posted?

A. Could you repeat that one more time.

Q. Yes. Were these comments, ones that you saw at the refuge,

in response to the videos that you had posted?

A. That's correct, yes.

MR. OLSON: All right. Your Honor, I would offer

this 2616 as an exhibit.

MR. KNIGHT: The Government objects, your Honor.

It's cumulative to what the witness has offered unrefuted

testimony to, and that is his state of mind as it relates to

people telling him that there may be a reaction to his

behavior.

THE COURT: The objection is sustained. Please

proceed.

MR. OLSON: Okay. May I be heard about that, your

Honor, at the next break?

THE COURT: You may, but the witness has already

talked about his fears. He may also testify that they are what

they are. The jurors do not need to see the explicit texts.

So please move on.

MR. OLSON: Okay. All right.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 123 of 262
 124 Fry - D - By Mr. Olson

BY MR. OLSON: 

Q. Mr. Fry, is there a -- you can take that down.

Is there something about you that you believe made

you particularly vulnerable to these types of threats?

A. Yes. You know, just looking at me, you know, long hair,

short, you know, small body, whatnot, and just -- just -- I --

I -- I definitely see myself becoming an easy victim, if I was

put in a -- in an environment like that.

Q. Okay. And was that concern a contributing factor for your

decision to not, you know, turn yourself in or -- or give up

your spot there at the refuge?

A. Yes, I -- I -- at that point, you know, I was thinking it's

probably better just to die than to be raped for the next 11

years or something.

Q. Now, we've heard from a rancher by the name of Mr. Dunbar.

And we don't need to dwell on this. But you heard testimony

about he needing to get onto the refuge to do some work.

Do you remember those phone calls or conversations

that you had with him and the FBI at that time?

A. I do remember.

Q. Did you have any problem with him coming onto the refuge,

and other government people coming onto the refuge to assist

him?

A. I did not.

Q. And did you communicate to that -- that to them?

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 124 of 262
 125 Fry - D - By Mr. Olson

A. Yes. I told Mr. Andy Dunbar that he was more than welcome

to come to the refuge to do what they were calling irrigation.

And -- and we told them that they had nothing to fear from us.

That we would allow him and the FBI agents to escort him as

bodyguards, to come to the refuge to do their work.

Q. Okay. All right. So then the Government played a couple

of videos that were shot -- it looks like -- on -- at least the

date of them was February 7th.

Two of those videos, you refer to something about

fortifying.

A. Mmmm.

Q. Do you recall those videos?

A. I do.

Q. Can you tell us what happened that day, that -- that caused

you to create those videos?

A. Well, in -- in response to, you know, hearing about -- you

know, not hearing. But the -- the -- the indirect kind of

threat that there was FBI agents, you know, sneaking around,

I -- me and Jeff decided it was probably better to kind of put

up a little security perimeter around us. And so we put up

little log -- wood logs around our tent, all the way around, as

much as we could.

And I started putting like string, like, up around

the area. And tied bottles and cans to the string, so if

people were to hit those strings, you know, you would hear them

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 125 of 262
 126 Fry - D - By Mr. Olson

coming.

And so when we did that, the FBI agent said that we

could be charged possibly with another charge, and my

understanding was the charge of fortifying. And so --

Q. Did the FBI agent tell you that directly, or did you hear

that some other way?

A. It came in from Sandy Anderson.

Q. Okay.

MR. KNIGHT: I'm going to object to -- based on the

that, your Honor, I'll object to hearsay, even as to state of

mind, if it's coming through another person.

THE COURT: The objection is sustained as to the form

of the question.

The witness may testify, without identifying why,

that he had a concern at some point -- based on the line you're

pursuing -- that conduct could be perceived as fortifying and

might make his situation worse.

Go ahead.

BY MR. OLSON: 

Q. Was --

MR. OLSON: Thank you, your Honor.

BY MR. OLSON: 

Q. Was it your understanding that you faced a whole new charge

of fortifying?

A. That's correct.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 126 of 262
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Q. And is that what you were -- and did you become upset about

that?

A. I did. I got -- I got upset because it sounded like a

completely baloney crime. And so I created a video, and I --

basically implying -- it was the video of my driving their

truck. And I was trying to basically tell them, if you want to

charge me with these crimes, go ahead and charge me with

driving this truck, too. And so that was my -- my response to

that.

Q. And you also -- there was another video where you talked

about somebody desecrating Mr. Finicum's memorial.

How had you heard about that?

A. We had access to the Internet through the -- that MiFi

hotspot. And we were browsing through the Internet and came

acrossed articles where at the site LaVoy was killed, you know

they put up the little crosses and stuff. And people were

going there and ripping them out and breaking them, and all of

that. And it was -- it was very disturbing.

Q. So was that another thing that you were upset about?

A. Yes.

Q. Were you still grieving the loss of Mr. Finicum?

A. I was definitely -- I don't know if you want to -- I mean,

grieving -- I wasn't weeping, or anything like that.

But I was extremely disgruntled by that because I

felt we definitely lost a good guy there.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 127 of 262
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Q. So -- and then the next day you're -- you spoke to an FBI

agent by the name of Ginda. You knew him as Vinnie Ginda. Do

you remember that?

A. Yeah, Vinnie Ginda.

Q. And there's a Government exhibit that has been played a

couple of weeks ago where you made a statement to Agent Ginda

to the effect of, Maybe I shouldn't let you guys come in here.

Maybe I should just take out as many of you as I can.

Do you remember that?

A. I do.

Q. Were you still upset when you had that phone call with

Mr. Ginda or Agent Ginda?

A. Yes. When I had that conversation, I -- I had told them

many times, like, you guys have no right to come in and just

start killing us.

And I thought I had mentioned that in that

conversation but I was explaining to him, you know -- that I

was trying to explain that we had a right to self-defense. And

you know that if he came in, trying to killing us or what not,

that we would -- that I would kill as many of those people as I

could, as possible. Or perhaps just -- maybe just kill myself

instead because I didn't really want blood on my hands.

And so I was telling him I was contemplating between

either going -- you know, becoming -- you know, kill them, or

suicide by cop, or just shoot myself.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 128 of 262
 129 Fry - D - By Mr. Olson

Q. Would you have shot at them if they had -- if it were

something other than self-defense?

A. You know, honestly, I -- I don't think I would have at all.

I just don't feel comfortable -- the idea of -- of killing

people, really. That's something that goes against my

religious belief.

And I actually told the FBI agents, you know, earlier

that I don't consider them my enemies at all. It's just

everybody wants to go home at the end of the day.

Q. So in making that statement and making similar statements,

was it your conscious desire to prevent U.S. Fish & Wildlife

and BLM employees from coming back onto the refuge to do their

job?

A. It never even crossed my mind.

Q. So January 10th -- February 10th arrives.

A. Mmmm.

Q. And the FBI arrive.

A. Mmmm.

Q. What are they driving?

A. They were driving -- well, what we now know as BearCats,

which is an armored personnel carrier.

Q. And how many of those vehicles appear -- were -- let me

strike that question.

Where were you when you first saw them?

A. I was actually -- I had this gut feeling to go out there --

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 129 of 262
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on the four wheeler to just go ahead and check out what's

coming. And here they were. So there was a bunch of these

BearCats heading our direction. And so I took back off on my

four-wheeler to come back to the -- to the camp. And warn the

others that they were coming.

Q. So how many of these vehicles were there?

A. Oh, there was (pause) at least eight.

Q. And were these vehicles -- are they bigger than a big

S.U.V.?

A. Much bigger, yes.

Q. Are they bigger than a Humvee?

A. Yes.

Q. And so you got back into the -- the encampment.

Where did they position themselves?

A. There was -- in the -- in the RV turnaround spot, they had

put two at the lower end of the turnaround. And then they put

two more in front of us. I'm thinking maybe there was three,

but -- but I think it was two.

But then they had one also up on the ridge, just a

little bit above us. And then they had, like, a couple of them

by the front gate.

Q. When you say "up on the ridge," you mean the road that's

kind of adjacent to the --

A. Yeah, well, the Sodhouse Lane.

Q. Okay. All right. And so when they arrived, did you think

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 130 of 262
 131 Fry - D - By Mr. Olson

this was an assault?

A. I did. And I believed it to be an assault because when

they called about doing the irrigation work with the ranchers,

I told them, you know, it was okay that the FBI people come.

But just don't use this as a sneak attack, you know, to attack

us. And the FBI agent said, "If we were planning to assault

you, we would not letting now know we were coming."

Q. Okay. So when they arrived on the 10th, did they tell you

they were coming?

A. They did not.

Q. Okay. So did you draw the conclusion that this -- from

that that this was an assault?

A. That's correct.

Q. Did you grab a gun and start firing at them?

A. No. I grabbed a bullhorn. And I told them that this was

wrong and that they needed to go home.

Q. Okay. Were you yelling at them?

A. Yes.

Q. Did they also have a loudspeaker, where they were speaking

at you?

A. Yeah. They were telling us, it's time to come out, that

they weren't going to assault us. And basically saying,

it's -- it's time to go.

Q. Okay. Were you ready to go?

A. I was not.

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Q. Okay. Why not?

A. Just due to the many fears that we still had -- well, I

guess, I had. And just the nature of the circumstance, it

didn't feel like it was justice, really.

Q. So approximately what time of day was it when they arrived?

A. This would be about 4:30 in the evening.

Q. And did they -- did this kind of just back-and-forth

yelling at each other kind of continue into the evening?

A. It did. And I was able to actually -- there was -- there

was a broken phone that we had found. And I pulled the sim

card out of that one and put it in one of the Anderson's phones

to -- and -- and loaded that one up, to get it working.

And so when the FBI agents came, I called out to a

guy named Gavin Simes. And he set up a live stream. And so

that was my attempt to let everybody know what was going on,

from the outside world.

Q. And is Gavin Sime, the person who has his own kind of

YouTube channel and YouTube show?

A. That is correct, yes.

Q. Okay. Now, did some among you negotiate for Reverend

Graham and Ms. Fiore to come and be present when you guys

surrendered?

A. Yes. So as this phone call with Gavin Sime was going

through, he was doing third-party routes, you know, calls. And

Gavin -- or not Gavin. Michele Fiore, I think it was. And,

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 132 of 262
 133 Fry - D - By Mr. Olson

yeah -- and then Franklin Graham -- like, we were wanting them

to come to the refuge to witness our -- our surrender, in a

sense.

And, at first, the FBI were like, no, you guys have

to come out now, and we weren't comfortable with that. And

eventually they did agree to allow those two to appear.

Q. Okay.

A. To see.

Q. And when did they get there?

A. This was -- the surrender was supposed to be scheduled at

eight o'clock in the morning. So they were there at least by

then.

Q. And -- well, did you -- did you surrender when they got

there?

Let me ask you this. Did Mr. Banta go ahead and turn

himself in?

A. Everybody else did turn themselves in at that time.

Q. And did you, immediately?

A. Immediately not. I did not. I was still worried, you

know, about these rape things. You know, I was actually

becoming very suicidal. I told them -- I went back into the

tent, and I told them, you know, none of our grievances have

been addressed. You know, doesn't -- there -- there's all of

these issues that still have to be resolved and that I wasn't

comfortable going to prison so I could be raped for the next

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 133 of 262
 134 Fry - D - By Mr. Olson

who knows how long? And so I -- I told them I had a gun

pointed at my head.

Q. Did you in fact have a gun pointed at your head?

A. I did.

Q. And were you live streaming still -- or again, I should

say, with Gavin Sime at that time --

A. Yes, there was --

Q. -- on the phone?

A. Yes, Gavin Sime was on the phone. I had two phones in my

hand. There was Gavin Sime, Chris Anne Hall. And, on the

other end, there was Marc, the FBI agent, and some other FBI

agent. And I'm trying to talk to these two at the same time.

And, eventually, Marc was able to convince me -- he

explained how the prison thing works, and he was, like, you

know, most of that big bubba stuff is -- is Hollywood kind of.

And that they actually segregate the really bad people from

kind of lesser -- lesser crime people.

And so that comment -- that reassured me more that,

you know, there wasn't really anything to worry about.

Q. Is it ironic that it was an FBI agent that ultimately

talked you out of there?

A. You know, I actually like Marc a lot. He was -- he seemed

like a really great guy. I probably had a better connection

with him than most. I actually believed him for -- for -- I

did.

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 135 Fry - D - By Mr. Olson

Q. Why did you make him say "hallelujah," before you came out?

A. It was just -- I don't know why that came out like that.

But it was something that just popped in my mind. You know, to

ask them if they would say "hallelujah." That -- you know,

that -- but if they were willing to say it, they would be like

less evil people in my mind, and I felt more comfortable, you

know, surrendering. And they agreed.

Q. Okay. Okay. So you turned yourself in?

A. So I turned myself in. And as soon as I came out, they all

started screaming "hallelujah." Yeah.

Q. Mr. Fry, at any time when you were at the refuge, did you

have consciously a desire to prevent officers from the U.S.

Fish & Wildlife --

MR. KNIGHT: Your Honor, I'm going to object. This

has been asked and answered four times by my count.

THE COURT: Yes, it has.

BY MR. OLSON: 

Q. Did you ever threaten or intimidate any officers?

A. I never did. Not -- not fish -- I mean, I guess,

apparently, the one comment, you know, about the FBI. But I

never threatened or intimidated, you know, Fish & Wildlife or

BLM.

MR. OLSON: No further questions, your Honor.

THE COURT: All right. Any other defense questions

of Mr. Fry?

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 135 of 262
 136 Fry - X - By Mr. Salisbury

MR. SALISBURY: Yes.

THE COURT: Yes. Mr. Salisbury, please.

CROSS-EXAMINATION

BY MR. SALISBURY: 

Q. Good morning, Mr. Fry.

A. Good morning.

Q. I wanted to first ask you about -- just a few minutes ago,

in your testimony, you said that when you heard about the

killing of LaVoy Finicum, that it sounded barbaric to you.

Now, I don't want to talk about the circumstances of

the killing of LaVoy Finicum. I want to ask you about -- you

used the word "barbaric."

What does that word mean to you?

MR. KNIGHT: I'm going to object, your Honor. He's

already testified as to his state of mind, how it was --

THE COURT: The objection is sustained.

MR. SALISBURY: Your Honor, he hasn't testified about

that word.

THE COURT: Sir, he has used the word, and it is a

normal word in the English language. The objection is

sustained.

BY MR. SALISBURY: 

Q. So after you found -- you thought it was barbaric. What

was the link between the phone call with Victoria Sharp and

when you saw Mr. Banta? You said that -- what I'm referring to

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 136 of 262
 137 Fry - X - By Mr. Salisbury

you is when Mr. Banta told you that the FBI was coming and you

testified about the cars.

A. Okay.

Q. Did that happen around the same time, or can you explain

that?

A. No, the -- the video of Victoria Sharp came later. That

would be -- it was -- it was Jeff Banta reported seeing the --

the convoy of trucks, or whatever, coming at 10 o'clock, 10:30

on the 26th. And Victoria Sharp video came out sometime after

midnight on the 20 -- it would be the 27th.

Q. So was the Victoria Sharp video very close in time to the

video that you made that night? That we've seen in evidence?

A. The 673? That video actually would be around 10:30, or so.

Q. Okay. Now, back to -- when you talked to Mr. Banta about

the convoy of cars, what did you learn after you talked to him?

What were you aware of about the convoy of FBI -- FBI vehicles?

A. I was aware -- I became aware that they were heading our

direction and that there -- there was quite a bit of -- of them

and that they were coming to surround us.

Q. And how did that make you feel at that point?

A. Well, I felt -- I felt we would all be killed.

Q. And I think you said at some point in your testimony you

said you thought we were going to die. Was that your

testimony?

A. Yes.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 137 of 262
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Q. So why not surrender?

A. Well, at that point there was also so many other people

that were staying behind. And just my -- I didn't feel

comfortable leaving them by themselves like that. And,

generally speaking, you know, death -- and it's a scary thing.

But if it has to happen, it has to happen. But I wanted to be

able to document and show how -- you know, to the outside

people how it went down.

Q. Okay. And I think you had said that -- were you aware at

that time that any of the other camera people -- that was the

word you used -- that they were all gone by that point?

A. That's correct.

Q. And who were the camera people? And what did they -- I

don't need the names of the specific people.

A. Well, they were all of the people that had a base of --

they had their own YouTube channels. Some of them had actually

their own websites and stuff.

But they had a certain amount of followers. So it's

not like, you know, if you just had no followers whatsoever and

you created it, no one's going to be watching or know what's

going on.

So I was the only one who actually had a certain

amount of, you know, followers that would be able to see what's

going on live.

Q. And that duty to stay behind, to document, that you talked

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 138 of 262
 139 Fry - X - By Mr. Salisbury

about, did that prove to be true to you? Did that help what

you were doing? Your documenting this?

A. I believe it -- it -- in the end, I believe it did save the

last four -- of us four. I think it saved our lives.

Q. And why was that?

A. Well, at nighttime -- when I did surrender on the 20 -- or

not the 20 -- the 11th, they actually had a whole bunch of

these people out in the bushes with their night visions. And,

you know, all of these little fancy goggles and -- they were

out there, coming up out of the bushes when I finally came out.

So they -- they were out there the whole night, and I think

they were going to come in.

Q. And how did your -- how did your live stream protect the

four of you?

MR. KNIGHT: Your Honor, I'm going to object at this

point to highly cumulative. We've talked about the role of he

live stream both with Mr. Olson's direct and now with

Mr. Salisbury.

THE COURT: The objection is sustained. This is an

argument inferential from the underlying facts. 

Go on.

BY MR. SALISBURY: 

Q. Do you think that the live stream protected you when you

testified about the BearCats?

MR. KNIGHT: I'm going to object. The same reason.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 139 of 262
 140 Fry - X - By Mr. Salisbury

THE COURT: The objection is sustained.

BY MR. SALISBURY: 

Q. Now, you just mentioned in your testimony about the -- that

you saw government agents out there in the -- at nighttime.

Is that what your testimony was just now? That you

saw them out there watching you?

A. No, no, no. When I turned myself in on the 11th, they

actually were coming up -- out from the bushes.

Q. Okay.

A. So -- so they were out there, I guess, watching us at

nighttime, and -- and stuff.

Q. Did you suspect that that was happening while you were

there with the final four?

MR. KNIGHT: I'm going to object to the relevance,

and it's actually cumulative. He talked about his perceptions

during that period extensively, with Mr. Olson.

THE COURT: Objection is sustained.

BY MR. SALISBURY: 

Q. Did that make you nervous that they were out there watching

you?

MR. KNIGHT: Same objection. He's asking a follow-up

question based on the -- a ruling that's been sustained.

THE COURT: The objection is sustained.

BY MR. SALISBURY: 

Q. Did you and Mr. Banta ever talk about the fact that the

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 140 of 262
 141 Fry - X - By Mr. Salisbury

government was out there watching you?

A. Yes. When -- when Jeff actually drove out there with that

four-wheeler, we were at the main camp, and we saw them driving

out and doing something. And he came back and brought this

camera. And we were all creeped out that -- that they had this

camera out there. And we didn't, at that time, know it was an

FBI camera. But he -- it was pointed in our direction.

And -- and we -- were all worried about, you know,

what are these things out there. You know, how many more out

there watching us? You know, there's all of these things out

there.

Q. And how did that affect your state of mind?

A. It was -- it was -- we felt -- we felt paranoid. Yeah.

Q. During the time you were there with Mr. Banta -- we've seen

some videos of, you know, around the campfire at night.

Did you ever talk about any agreement with Mr. Banta

to prevent employees from going to work at the refuge?

A. No. They -- again, the -- the topic of employees had never

came about.

Q. Did you ever talk about ways that you could use fear,

threats, or intimidation --

MR. KNIGHT: I'm going to object. This has been

asked. 

THE COURT REPORTER: One person.

MR. KNIGHT: This is highly cumulative.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 141 of 262
 142 Fry - X - By Mr. Salisbury

He's been asked a number of times about whether or

not he committed the crime as alleged.

THE COURT: The objection is sustained. These are

arguments and phrases for argument.

Mr. Salisbury, please go to something new.

BY MR. SALISBURY: 

Q. What was the focus of your concern in talking to Mr. Banta

during that final four portion?

A. Well, we were really hoping that -- the Government kept

saying, you know, Oh, it's not that big of a deal charge. And,

you know --

MR. KNIGHT: I'm going to object to hearsay, your

Honor.

THE COURT: Overruled. Go ahead.

THE WITNESS: And so we kept asking them, "Well, if

it's not that big of a deal, then why don't you just drop the

charges and let us all go? Because we're all already -- we're

all packed and ready. And we're all willing to leave, if

you'll all just let us all go." And they wouldn't let us.

BY MR. SALISBURY: 

Q. So were you trying to find a way out?

A. Yes.

Q. Now, we heard some testimony earlier, but I didn't hear it

from you.

Could you just describe -- I think you were -- were

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 142 of 262
 143 Fry - X - By Mr. Salisbury

the main point of contact on the phone calls with the FBI

negotiators?

A. I was. Everybody -- everybody else really didn't want to

be part of talking with the FBI. And I felt that -- I was

scared that if we didn't talk to them, that they would take

that as a sign of not cooperating, and they would just attack

us. And so I kept talking and talking and just -- I was the

only one talking to them, almost all the time, just to keep the

conversation going.

Q. Can you describe, you know, how often you would talk to

them on a normal day?

MR. KNIGHT: Your Honor, I'm going to object. This

is cumulative. The FBI folks actually talked about their

contacts with Mr. Fry and the Mr. Banta and everybody else

there.

THE COURT: The witness may talk about his

perspective, which may or may not align with the direct

testimony on this point. The objection is overruled.

Go ahead and answer.

THE WITNESS: And so he -- they would call three

times a day, and I would probably talk one to two hours. A lot

of times two hours, or so, each time.

BY MR. SALISBURY: 

Q. And then you had said that the first call was around the

26th or 27th of January?

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 143 of 262
 144 Fry - X - By Mr. Salisbury

A. The first call was the 26th. This would be -- this would

be probably about six o'clock, or so.

Q. And then you -- that continued every day until the 11th of

February?

A. That's correct.

Q. And just three phone calls per day? Or more than that,

sometimes?

A. Well, it would be three because they would -- they would

always say, you know, we're going to call tomorrow again at --

I think it was nine o'clock in the morning. And then 12

o'clock in the afternoon. And then I'm thinking maybe six

o'clock in the evening. So they would -- it would always be

the same every day. The same times.

Q. And did you trust the FBI during those phone calls that you

had with them?

A. I didn't.

Q. Why was that?

A. There was a lot of, like -- I -- I would throw out little

tests, you know, asking if they knew about this or if they knew

about that. And they would always say, Oh, no, we -- for

example, we -- we asked -- I was talking about Mark Rich, who

was pardoned by Bill Clinton, you know, after his last day on

presidency.

And I was asking them, you know, why can't the

President just pardon us? And they were like, well, you first

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 144 of 262
 145 Fry - X - By Mr. Salisbury

have to go to court to be pardoned. And that's not true

because Mark Rich fled to Switzerland, and he was pardoned and

he never stepped foot in court. And so I would throw out

things like that. And I would catch them -- I presumed they

were lying. Maybe they were just ignorant, I don't know.

Q. And did that -- your lack of trust for the FBI, did that

delay -- or put it this way. 

Did it make you stay at the refuge longer during the

final four period?

MR. KNIGHT: I object. We've covered this at length.

THE COURT: Sustained. Ask a new question, please.

BY MR. SALISBURY: 

Q. Now, who had the idea for Franklin Graham?

A. That was Jeff Banta's idea.

Q. Did you think that was a good idea?

A. I did.

Q. Was it helpful?

A. I think it was. I believe he brought a more uplifting, you

know, attitude to the area. You know, we -- we knew he wasn't

going -- he's not plotting to seek really to destroy us, or

anything. He is this Christian guy. So we felt comfortable.

Q. How often did you talk to the Reverend Graham?

A. I can't say exactly when that started. But from -- from --

after the day it started, it was almost an every day basis.

Q. And did you participate in those calls?

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 145 of 262
 146 Fry - X - By Defendant Ryan Bundy

A. I did.

Q. Did you talk to Reverend Graham by yourself or with -- with

the other final four?

A. We talked to him -- since we couldn't figure out how to get

the speakerphone working on that flip phone, we all just took

turns talking. Sometimes we were just all huddled up in the

tent together. Sometimes we would just be walking about,

talking on the phone. So it was both.

Q. And do you think that that contributed to resolving this?

Having Reverend Graham talk to you guys?

A. I think so. I think he definitely calmed the attitude

between both parties. And, you know, it was ultimately his

presence -- you know, allowing him to come witness our

surrender, we felt absolutely 100 percent sure that, you know,

there wasn't going to be no sneaky killings.

MR. SALISBURY: No further questions, your Honor.

THE COURT: All right. Other defense questions?

DEFENDANT RYAN BUNDY: Yeah.

THE COURT: Yes, Mr. Bundy.

CROSS-EXAMINATION

BY DEFENDANT RYAN BUNDY: 

Q. Dave Fry, how are you today?

A. I've been better.

Q. Been better, huh? Been a rough go.

You mentioned that there was quite a few calls you

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 146 of 262
 147 Fry - X - By Defendant Ryan Bundy

had with the FBI.

Did they speak about wanting to bring a peaceful

resolution to this during those calls?

A. You know, that -- that -- that word popped up more times

than I can count on my fingers. It was -- it was a very

commonly used word.

Q. They said it all the time, huh?

A. They did.

Q. Peaceful resolution.

Did -- to your understanding, is arresting you and

throwing you in jail for months on end a peaceful resolution?

MR. KNIGHT: I object to the relevance of that

question.

THE COURT: The objection is sustained.

BY DEFENDANT RYAN BUNDY: 

Q. What -- you mentioned that letting you go would have -- you

wanted to go. You wanted to go home.

Would letting you go, in your mind, have been a

peaceful resolution?

A. It would have. But, again, I was -- I was worried about

what would happen to the others.

So I wanted everybody to go home together, instead

of, you know, being separated and one at a time.

Q. You wanted it peaceful for everybody?

A. I wanted it to be peaceful for everybody, yes.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 147 of 262
 148 Fry - X - By Defendant Ryan Bundy

Q. And during those phone discussions, did you discuss with

them for -- the reason for which you were there?

A. I did. I said, you know, we were here protesting. And

eventually, of course, they -- they brought out the charges

against us, over the phone, and told us what's going on.

And we had -- I believe we had explained that, you

know, that wasn't what we were there to do. We were

protesting, you know, the Hammonds. And just the federal

corruption. Not -- not there to prevent workers.

Q. So as far as a peaceful resolution, did they ever try to

resolve those issues?

A. No. And that was one of the things that I said just before

I left. I -- I was telling them, you know, it doesn't feel

like there was justice here because none of our grievances ever

have been addressed. It's just, you know, we're going to come

here and -- and the government just goes there and squashes

the -- the protest and never -- never answers to any grievance.

Yeah.

Q. So you said you didn't have trust for them. Is that in

part because they claimed to want a peaceful resolution and yet

would not work with you to resolve anything?

A. Could you repeat that one more time?

Q. Said your -- your mistrust, you -- you said earlier you did

not trust the FBI. Is that correct?

A. That is correct.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 148 of 262
 149 Fry - X - By Defendant Ryan Bundy

Q. Is that in part because you had issues to resolve and yet

they would not resolve those issues with you?

A. I -- I had a distrust of the FBI, just in general because

of how they acted in the past historically.

And, you know, this whole protest was a peaceful

protest, and it's the government who started the gunfight. I

mean, started shooting people. And so it's -- it's kind of odd

for -- for the bully to ask for a peaceful resolution.

Q. And so you're saying that the killing of LaVoy Finicum was

not a peaceful resolution?

MR. KNIGHT: I'm going to object to the question,

your Honor.

THE COURT: The objection is sustained.

BY DEFENDANT RYAN BUNDY: 

Q. Have any of those issues been resolved as yet of today?

MR. KNIGHT: Object as asked and answered.

THE COURT: Objection sustained.

DEFENDANT RYAN BUNDY: That's not asked and answered.

It's a new question.

THE COURT: It's an argumentative point, sir. Move

on.

BY DEFENDANT RYAN BUNDY: 

Q. Back to some details, talking about the computers.

You were on a computer that belonged to the facility

there, or those who belonged to the facility.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 149 of 262
 150 Fry - X - By Defendant Ryan Bundy

And did you ever access the hard drive to that

computer?

A. No. I -- I -- so -- what I -- in my past, working with

encrypted hard drives, if it's -- it's a protected hard drive,

it won't pop up on your operating system screen when you boot

Linux, the operating system I'm running. And so at that point

it's like, oh, okay. So that's an encrypted hard drive. And

at that -- I never made any attempt to access it, or anything

like that.

Q. So you weren't able to utilize the files or see anything on

it? Hard drive's not accessed. It's -- basically you're just

using the screen and the keyboard?

A. That is correct, yes.

Q. Did you ever access any hard drives on any other computers?

A. I did not.

Q. You talked about the two men who came at the end of the

occupation, saying they were former Navy SEALs.

A. Yes.

Q. Did you and others suspect them of being government agents?

A. We did. They -- they have been acting very suspicious.

And at one point they were up in the tower, and they -- you

know, they're like, "Oh, we have this radio --

MR. KNIGHT: Object to hearsay, attributing these

statements --

THE COURT: The objection is sustained, the witness's

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 150 of 262
 151 Fry - X - By Defendant Ryan Bundy

answer stands with respect to his suspicion.

Move on, please, Mr. Bundy.

BY DEFENDANT RYAN BUNDY: 

Q. And did -- and did you detect that you and all of the other

remaining occupants all concluded that the men were undercover

agents?

MR. KNIGHT: I'm going to object to speculation.

He's asking him to state for everyone else --

THE COURT: The objection is sustained. 

Go ahead, Mr. Bundy.

BY DEFENDANT RYAN BUNDY: 

Q. Did that contribute to them leaving, you believe?

MR. KNIGHT: I'm going to object to his personal

knowledge of why they left.

THE COURT: You need to -- yes, I agree. 

The question, in its form, called for speculation.

So the objection is sustained.

You may rephrase in a way that does not call for the

witness's speculation.

BY DEFENDANT RYAN BUNDY: 

Q. Did you know -- let's see. You said that these men left on

the 27th. Is that correct?

A. Sometime in the afternoon. Correct. On the 27th.

Q. Was it your understanding, at that point, that roads were

blocked at that point? Or do you know?

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 151 of 262
 152 Fry - X - By Defendant Ryan Bundy

A. Yes. And that's -- that's strange because they said the

roads were going to be blocked by 4:00 a.m. on the 27th.

And here they had left in the afternoon and nothing

about these guys is known. And -- and it's odd that they got

out without ever knowing who they are.

Q. So as far as your knowledge goes, they were not arrested?

A. No.

Q. Did that lead to your suspicion that they were government

agents?

A. It did. And -- and -- but we also -- because we felt that

they were government people -- you know, everybody there made

it known to them that we did not really like them at all.

We -- we kind of shunned them a lot, and I think that

contributed to them kind of leaving.

Q. Was that because they were being disrespectful of things

that we were trying to respect previously?

A. Yes. The door kicking was absolutely -- that was -- that

was taboo upon the people believing that this was a good cause.

Q. Were there other -- without specifying, were there other

things besides that?

A. Their comments that they had made, it -- it was not what we

were standing there for. You know, they were kind of more

trying to provoke a fight.

Q. And -- (pause) trying to formulate a question in my mind as

to your overall feeling of the entire event; why you came and

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 152 of 262
 153 Fry - X - By Defendant Ryan Bundy

why you stayed. Did you feel you were there for a good purpose

and a good reason?

MR. KNIGHT: Your Honor, I'm going to object. The

answer to that is encapsulated in all of the direct

examination.

THE COURT: The objection is sustained.

(Pause, Defendant Ryan Bundy conferring with 

Ms. Ludwig.) 

BY DEFENDANT RYAN BUNDY: 

Q. Okay. One more question on that. That door that was

kicked. Was the door that was kicked in, was that the exterior

door to the place where LaVoy was staying?

A. It is. And in one of the pictures, you'll see where he had

the basket with the cameras.

You can see that -- the door, right there, and you

can see how it's all splintered. The word is splintered. And

there's a little bit of wood on the floor. That is the door,

yes.

Q. So that's also known as --

A. The -- Burnside's office.

(Defendant Ryan Bundy and Defendant Ammon Bundy 

conferring.) 

BY DEFENDANT RYAN BUNDY: 

Q. Was -- was that the only door that was kicked in?

A. Yes.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 153 of 262
 154 Fry - X - By Defendant Cox

Q. And you felt right about going there and doing what you

did?

MR. KNIGHT: I'm going to object to the question,

your Honor. It's been asked and answered.

THE COURT: It's cumulative now. 

You've asked that. He's testified to it. Please ask

something new.

DEFENDANT RYAN BUNDY: I have no further questions. 

Thanks, David.

THE COURT: Other defense questions?

Ms. Cox? 

Go ahead.

CROSS-EXAMINATION

BY DEFENDANT SHAWNA COX: 

Q. Hi, David. Oh, sorry.

When you arrived at the refuge, were you dressed for

cold weather?

A. I -- I brought my jackets, but I didn't realize how cold it

was going to be.

Q. That was my next question.

Did you know it was going to be minus 14 degrees?

A. I did not.

Q. Nick Bleuler stated that you were wearing camos at the fire

when you were holding a -- allegedly holding this gun.

A. Mmmm.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 154 of 262
 155 Fry - X - By Defendant Cox

Q. Have you ever worn camos while you were there?

A. I did not. And I think he might have mistaken my black --

it had brown, like, stripes on it. And he probably thought

that was the camo pants, but it was actually just a sports

pants.

Q. Okay. Did we ever talk about using your hotspot to access

the Internet? It was --

A. Yeah, it's my -- I have a hotspot.

Your phone -- phones nowadays, the smartphones have

the option to use it as a hotspot that turns it into an

Internet, basically.

Q. Is that what we were using to connect your laptop and mine,

also, when we had to access the Internet?

A. That's correct. You can share it upon -- I think it's like

ten people can connect to the same one.

Q. You mentioned getting a text from LaVoy about recording at

this meeting, in John Day. 

Do you -- do you remember that -- saying that, just a

little bit ago?

A. I do.

Q. And do you recall -- or do you know who replaced you at

that meeting?

A. That's -- I believe that would be Victoria Sharp went

because I didn't go.

Q. Mr. Banta testified that there was a -- a terrible odor in

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 155 of 262
 156 Fry - X - By Mr. Schindler

the bunkhouse when the Navy SEALs were there.

Do you know what that was?

A. There was this really bad odor in one of the rooms, and I

did not know what it was. But I stayed out of that room

because it smelled really bad.

Q. Did you see any of these Navy SEALs smoking in the

bunkhouse?

A. There was. They were.

Q. Prior to January 26th, did you ever see anyone smoking in

any of the buildings?

A. No. No. Smoking was absolutely forbidden within the

buildings. And made sure everybody cleaned up the area. Like

they were very angry if anybody threw cigarette butts even on

the floors outside.

Q. Was there any conversations between yourself and me about

employees coming to work in the office where you were?

A. No. No one ever mentioned employees ever coming, or to

keep them from coming.

DEFENDANT SHAWNA COX: No further questions.

Thank you, your Honor.

THE COURT: Other defense questions?

Mr. Schindler.

MR. SCHINDLER: Yes, please, your Honor.

CROSS-EXAMINATION

BY MR. SCHINDLER: 

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 156 of 262
 157 Fry - X - By Mr. Mumford

Q. Mr. Fry, did you ever meet Mr. Medenbach during the time

that you were at the refuge?

A. I don't remember actually meeting him.

I just know -- I heard about him being arrested.

Q. Were you aware that he had taken a government truck?

A. Oh, yeah. That was all over the news.

Q. So you had no opportunity to speak directly with

Mr. Medenbach?

A. I don't recall having a conversation with him.

MR. SCHINDLER: I have no further questions, your

Honor.

THE COURT: All right. Mr. Mumford.

MR. MUMFORD: Thank you.

CROSS-EXAMINATION

BY MR. MUMFORD: 

Q. Mr. Fry, you testified that you got to the refuge

approximately late night January 8th, then. Is that right?

A. That's correct.

Q. And how soon after that would you say you had your first

interaction with Mr. Ammon Bundy?

A. That would be many days later. And I never actually even

really spoke with him. I met him -- you know, we made eye

contact, we shook hands. And he said, you know, "Thanks for

being here." And that's -- that's about it.

Q. Did -- did you -- so most of your interactions, then, at

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 157 of 262
 158 Fry - X - By Mr. Mumford

the refuge were with Mr. LaVoy Finicum then? Is that right?

A. LaVoy Finicum and anybody who came to the office that I was

working at, the -- the firehouse building. And so I got to

talk to LaVoy a lot of times, when he came in. And then I

talked to Shawna, when she came in there. And then I talked to

various other people at the fire -- not the firehouse. The

bunkhouse, over by the -- where you eat.

Q. You mentioned that Mr. Finicum had referred to that area

that -- where you were as the media center. Is that right?

A. That's correct.

Q. Did you end up helping Mr. Finicum out with the media

outreach, and things of that nature?

A. I did. I -- eventually, he gave me access to his YouTube

channel page.

And I would record a video of him talking about, you

know, the Native American artifacts that were left out in the

front, to be exposed to the weather. And I would post that to

his YouTube channel.

Q. Those were artifacts that you guys had found exposed when

you got there. Is that right?

A. That's correct.

Q. And what did you do to take -- take better care of those?

A. Well, he brought them out from, you know, sitting right

there in the grass area by the building. And he brought

them -- I think -- it was into the -- that building he was in.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 158 of 262
 159 Fry - X - By Mr. Mumford

He put them in there.

Q. And you mentioned that you were interviewed by -- by some

of the media. Is that right?

A. That's correct.

Q. Felt like they ridiculed you?

A. That's right.

Q. How many times did you approach the media, looking to do an

interview, to try to get some of your concerns out there?

MR. KNIGHT: I'm going to object to the relevance of

the witness speaking to the media during the occupation.

THE COURT: The objection's sustained, beyond what's

already been established. 

Please move on.

MR. MUMFORD: Thank you.

BY MR. MUMFORD: 

Q. Mr. Fry, do you understand that outreach to the media was

kind of part of the mission there?

A. Absolutely. I believe that, you know, the media is

supposed to be -- as we all learned in school, you know, the

watchdogs against the government. You know, they're supposed

to be protecting us. And so we used them -- we were trying to

use them as a way to reach out to the world, the nation, about

our grievances that we have against the federal government.

Q. Did -- did you -- and did you have frustrations with --

with that during your time there?

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 159 of 262
 160 Fry - X - By Mr. Mumford

A. Yes, I -- I soon came to realize that the media, instead of

being the watchdogs for the people, they had become the

government lap dogs, and they have become more political. And

so they're more interested -- 

MR. KNIGHT: I'm sorry. I'm going object to the

narrative answer opining about his view of the media as

irrelevant.

THE COURT: I'm going to let this part, that which

the jury has heard, stand with respect to its bearing, whatever

the jury may find, as to the witness's state of mind. But I'm

now sustaining the objection to exploring that because it is

too attenuated to any material issue in the case.

Please move on, please, Mr. Mumford.

MR. MUMFORD: Thank you, your Honor.

BY MR. MUMFORD: 

Q. Was there a discussion, while you were at the refuge about

how the -- the -- the media's misreporting of what was going on

was actually making it more dangerous for people there?

A. Absolutely. The media was telling people all of the power

was cut. At one point they said that there was blockades set

up, that were never there. They at one point even brought

in -- maybe -- I don't know if they brought him in. But there

was these two guys that were ripping off the tarp from some of

the signs, angry at us. And they were covering that, and it

seemed like they were trying to incite violence towards us.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 160 of 262
 161 Fry - X - By Mr. Mumford

Q. You had mentioned -- and Ms. Cox asked you a couple of

questions about this -- about that day, Mr. Finicum telling you

he was going to meet with the sheriff. Right?

A. Okay.

Q. And -- and did you have an understanding as to what was

significant about that meeting that Mr. Finicum was going to

have with the sheriff that day?

A. I wasn't aware of any details of what the meeting was going

to be about. I just know that from the past, you know, they --

the had said that the sheriff's job is to protect, you know,

the people. And so they were trying to get all of the sheriffs

to basically uphold the Constitution, so that they could help

protect us against federal tyranny, basically.

Q. Do you know why Mr. Finicum wanted you -- wanted -- wanted

you to join him at that meeting that day?

A. Yeah, he -- he wanted me to record it.

Q. And you -- you -- you testified that you later found out

about some of the circumstances of -- of -- of Mr. -- of

Mr. Finicum's death then. Right?

A. I later did -- was aware of the circumstances, yes.

Q. And that contributed to your -- your -- your -- to some of

the choices you made in staying there, and that kind of thing.

Right?

A. It was definitely a contributing factor, yes.

Q. Was -- was -- was one of those details you learned that

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 161 of 262
 162 Fry - X - By Mr. Mumford

Mr. Finicum was shot while his hands were in the air?

MR. KNIGHT: Your Honor, I'm going to object to the

mischaracterization.

THE COURT: The objection is sustained. 

Mr. Mumford, you're violating the Court's rulings in

limine.

BY MR. MUMFORD: 

Q. Besides -- besides what you testified to, Mr. Fry, are

there -- are there circumstances about the shooting that you

learned from Mr. Finicum --

MR. KNIGHT: I object. This has been covered

extensively.

MR. MUMFORD: Excuse me. Excuse me.

THE COURT: The objection is sustained. 

The witness is not to talk about the circumstances of

Mr. Finicum's shooting beyond what has already been covered. 

Move to another subject.

MR. MUMFORD: I was going to ask if that contributed,

your Honor, to his decision to -- to -- to stay there.

THE COURT: That has already been covered. The

objection is sustained.

Move --

MR. MUMFORD: Well -- 

THE COURT: Mr. Mumford, you're forfeiting any more

examination if you press this point any further in the jurors'

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 162 of 262
 163 Fry - X - By Mr. Mumford

presence.

MR. MUMFORD: With respect, I'm trying to find out if

it has been covered, your Honor.

THE COURT: And I have sustained the objection three

times now. Move on.

BY MR. MUMFORD: 

Q. Mr. Fry, did you -- did you come -- come to know an

individual at the refuge that would sometimes visit named

Tucker Dunbar?

A. I'm actually not aware of him.

Q. Okay. You talked about some of the circumstances of you

coming out and -- and -- and surrendering that day. Right?

Were you on the phone with Ms. Michele Fiore?

A. She was on the -- I think the third -- it was like a

third-party -- a three-way call. 

Q. Do you have an understanding as to why -- why -- why it was

that you were speaking with her and that contributed to your

decision to come out that day?

A. I would say she -- she helped, you know, and then she --

she was also there. She came there to witness. And so it

definitely felt more safe with -- with civilian people

watching.

Q. And you knew she was a political representative from

Nevada, right?

A. Yes.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 163 of 262
 164 Fry - X - By Mr. Mumford

Q. You mentioned in your testimony earlier that you -- that

you were not familiar with some of the federal lands issues.

Is there federal and public land in -- in -- in Ohio?

A. It's unheard of. I mean, most people aren't aware of

anything like that.

Q. Do you know why there's -- there's -- there's not as much

federal public lands in some of those other states, as there

are out -- out west?

MR. KNIGHT: I'm going to object to the relevance of

the witness's opinion about public lands.

THE COURT: The objection is sustained in light of

the earlier foundations. Move on, please, Mr. Mumford.

BY MR. MUMFORD: 

Q. Was -- would there -- was there -- was there -- did --

did -- did you meet the son of a local rancher who sometimes

would come in at night on his ATV, with the lights off?

A. I was not aware.

MR. MUMFORD: Okay. Thank you.

Hold on for just a second.

(Pause, Mr. Mumford and Defendant Ammon Bundy 

conferring.) 

BY MR. MUMFORD: 

Q. You -- you testified about the -- the -- these Navy SEALs

kicking in the door after -- after -- after the shooting of --

of Mr. Finicum.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 164 of 262
 165 Fry - X - By Mr. Mumford

Was there -- was there a real contrast, if any,

between the environment at the -- at the refuge before you

found out what had happened to Mr. Finicum and after?

A. Like a change of mood?

Q. Yeah.

A. Yeah, the -- before -- before the 26th, when LaVoy died, it

was calm. It was -- it was a really very happy environment.

Then after -- well, I guess the night of the 26th,

it -- it became absolutely chaotic. The women, screaming

hysterically, with tears running down their face because they

thought the daughter -- you know, they knew the daughter was in

the truck. And so they thought maybe she was one of the people

that were shot. Because, at that time, we didn't know who was

shot.

And so they were the first to go, and all of the

children went with them. And people were just really freaking

out and running.

Q. And so is it fair to say there was -- that contributed to

the loss of organization that was there, then?

A. Oh, it was -- it was -- there was no more organization.

MR. MUMFORD: Thank you.

Thank you, Mr. Fry. Thank you, your Honor. No more

questions.

Mrs. Maxfield, did you have any questions?

MS. MAXFIELD: No. Thank you.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 165 of 262
 166 Colloquy

THE COURT: All right. We're going to take the noon

recess before cross. Your lunches are here.

So, ladies and gentlemen, we'll resume when you're

ready. Please let Ms. Boyer know when that is. We'll assume

about 30 minutes, but we'll go from there.

All right? No talking about the case or anything it

involves.

Leave your notes here. Let us know when you're ready

to resume.

(Jurors exit at 11:59 a.m.)

THE COURT: All right. Mr. Fry, you may step down.

Everyone should be seated except for Mr. Fry,

Mr. Bundy, and Mr. Bundy. 

And then we'll resume on the record at 12:30 to take

up any issues before the jury returns.

Mr. Barrow, do you have material for me to work with

over the noon hour?

MR. BARROW: I'll check immediately, on getting

downstairs.

THE COURT: Bring it to chambers as soon as it's

available.

MR. BARROW: I will, your Honor.

MR. MUMFORD: And just so your Honor knows, by our --

by our count, there are 129 memos.

I think your Honor thought there were only 13. There

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 166 of 262
 167 Colloquy

are 13 additional individuals --

THE COURT: It was made clear to me that there were

more than 13 memos, so I'm going do the best I can. But I

can't start until I have them.

MR. MUMFORD: Got it.

THE COURT: Mr. Bundy needs to step on out, while

everyone remains seated.

MR. BARROW: Your Honor, just so the parties know --

THE COURT: Hold on. We can wait. We're in recess

now, Mr. Barrow.

MR. BARROW: We can take it up later. I just wanted

to make sure the record -- we'll take it up after.

THE COURT: All right. Everyone's in recess. Be

back and ready at 12:30.

(Recess taken at 12:01 p.m.)

-0- 

(Court resumes at 12:42 p.m.) 

THE COURT: Do the parties have anything to put on

the record before we continue with the jury? Mr. Mumford?

MR. MUMFORD: Oh, Mr. -- Mr. Puckett, your Honor, is

at a computer at two o'clock. We've tested it with the

assistance of the court IT. They had a conference room where

they tested it. It works. They can bring it in through the

system. It's video.

And I understand the Government is still objecting.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 167 of 262
 168 Colloquy

THE COURT: Well, when you want to make the proffer,

we'll have the jury -- I'll tell you what, when we finish with

Mr. Fry, we'll take up what we can.

And the jurors are going to need to step out when he

moves back to his table.

If Mr. Puckett is then available, I can see what it

looks like outside the jury's presence.

If he's not, then we'll take the other witness

presentations that need to be done. And then, at two o'clock,

we'll have the jurors step out and see if we can -- I -- I

can't make a ruling on this issue until I can see it myself.

MR. MUMFORD: So he's here. He's available at two

o'clock. He's going to be back -- he had to go pick up his

daughter. He's back in front of a computer at two o'clock.

THE COURT: All right. So we'll see what we can do.

And if we can't do it in the jury's presence today,

then we may have to do it at 2:30, outside their presence,

assess how it looks. And we might have to set it up for

Monday. We only have so many hours between now and when the

jury leaves for the day.

MR. MUMFORD: When is the jury leaving for today.

3:00?

THE COURT: 2:30.

MR. MUMFORD: Oh, okay. 2:30. Okay. It's going to

be really fast, so --

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 168 of 262
 169 Colloquy

THE COURT: Mr. Schindler?

MR. SCHINDLER: And we're confident we're not getting

into a rebuttal case today?

THE COURT: I don't know.

MR. SCHINDLER: I don't know either. 

THE COURT: Well, then you know exactly as much as I

know.

MR. SCHINDLER: Well, before we get into a rebuttal

case, there are some things I need to address with you.

THE COURT: You've made that clear.

MR. SCHINDLER: Thank you, your Honor.

MR. OLSON: Your Honor, may we address Exhibit 

No. 2616, which was the --

THE COURT: Facebook post?

MR. OLSON: Yes. The comments from Mr. Fry's --

THE COURT: If you wish to complete your record, go

ahead.

MR. OLSON: Okay. Your Honor, the purpose of

offering those was to establish the effect on Mr. Fry's mind.

These were representative samples of threatening-like

statements that he received, saying that he'll be raped in

prison, essentially.

They are quite explicit. They're quite vulgar. My

intention was not to have Mr. Fry read them out loud or for me

to read them out loud. But, rather, just to offer it as an

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 169 of 262
 170 Colloquy

exhibit, so that the jury in its consideration -- when it goes

back the jury room -- could have those to look at and consider.

They're very impactful. And I think they are -- they go to

corroborate Mr. Fry's state of mind but also just to show the

ferocity and the vulgarity of those statements as impacting his

state of mind.

So I believe they're both relevant and being offered

for a nonhearsay purpose. In fact, I don't think there's any

conceivable hearsay purpose that would be offered there. It

goes to his state of mind.

THE COURT: Mr. Knight.

MR. KNIGHT: Your Honor, the Government's position is

they are both cumulative and prejudicial. There's no dispute

that Mr. Fry was indeed affected by his belief that if he were

to go into custody early, he may be subjected to this sort of

situation. He testified to that repeatedly, and that was

corroborated on the stand by his review of these posts.

So sending incendiary language like this as an

exhibit to the jury has no evidentiary purpose. And to the

extent it does, it's certainly outweighed in a balancing test

with the incendiary nature and content of the language.

THE COURT: The other point of corroboration is that

other witnesses have talked about Mr. Fry's fear in that

respect. It's been before the jury in a variety of ways.

The content is highly prejudicial. The point is

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 170 of 262
 171 Fry - X - By Mr. Knight

made. I'm not going to give the exhibit to the jury in any

form, under Rule 403.

So your objections -- the Government's objection

remains sustained. Your proffer has been considered. The

document's in the record and can be submitted on appeal, in the

event there's a conviction.

All right. Are we ready for the jury now? Are we

ready for the jury now? Yes?

MR. KNIGHT: Yes.

THE COURT: All right. Please bring in the jury.

(Jurors enter at 12:46 p.m.)

THE COURT: All right. Thank you, everyone. Please

be seated.

All right, jurors, all ready? Yes?

Okay. Cross-examination, Mr. Knight.

MR. KNIGHT: Thank you.

CROSS-EXAMINATION

BY MR. KNIGHT: 

Q. Good afternoon, Mr. Fry.

A. Good afternoon, Ethan.

Q. Now, I'm going to go through some of the events you

described at the refuge, beginning at the time you left Ohio.

A. Okay.

Q. Now, Mr. Fry, you drove all the way from Ohio, in January,

to go to the refuge?

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 171 of 262
 172 Fry - X - By Mr. Knight

A. Yes. 2500 miles.

Q. And your testimony was that that was a great opportunity to

get out of the house, to go to the refuge?

A. Well, not to get out of the house but to -- it's the first

protest I ever been a part of and I thought this would be, you

know, a good one to join.

Q. And you testified and described a little bit for the jury

about what happened when you got there.

So when you arrived that evening, it was dark. Is

that right?

A. Yes.

Q. And you came in from the southeast?

A. The southeast, yes.

Q. And when you arrived, you were met by some folks at the

road who had headlamps on or headlights? Flashlights?

A. No, they just had flashlights. 

Q. And you couldn't tell whether or not they had guns?

A. I could not.

Q. And it was your testimony that you told them that you were

here to, quote, "help you guys"? Is that right?

A. I said it -- I came to help. I brought some supplies.

Q. And after you told them that, they moved the truck out of

the way and let you into the refuge?

A. That's correct.

Q. And you described a little bit on direct examination that

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 172 of 262
 173 Fry - X - By Mr. Knight

you thought that the occupation was, quote, "an MLK-style

sit-in." Is that right?

A. I did.

Q. And once were you there a while, you realized that it was

not in fact an MLK-style sit-in. Isn't that right?

A. No, actually, I still thought it was a sit-in.

Q. Despite the fact that there were over 16,000 live rounds of

ammunition present, you still thought it was a Martin Luther

King-style sit-in?

MR. OLSON: Objection. Hasn't been established this

witness knew that at the time.

THE COURT: Rephrase your question about the

witnesses's knowledge with respect to the ammunition and the

content of the question you're asking.

BY MR. KNIGHT: 

Q. Thank you. Now, Mr. Fry, you testified a little about --

that you knew there were some guns there and you saw them. Is

that right?

A. Yes.

Q. And there, at the end, you in fact had a number of guns in

your possession in your car and in your campsite. Is that

right?

A. Yes.

Q. And there was also a lot of ammunition present in that west

encampment area where were you. Is that right?

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 173 of 262
 174 Fry - X - By Mr. Knight

A. That's correct.

Q. And you were actually at the refuge with this material for

40 days, or so. Is that right?

A. No, not me personally for 40 days.

Q. Well, you were there -- I'm sorry, my math. You were there

from January 4th until February 11th. Is that right?

A. No, January 8th to --

Q. Oh, I'm sorry. The 8th till February 11th?

A. February 11th, yes.

Q. And so based on the time you were there and the

observations you just described about the firearms, it's still

your opinion that this was, quote, "an MLK-style sit-in"?

A. I still considered it a sit-in, yes. But the guns were

brought to my attention -- was because of a fear of any kind of

Waco attack. That they just had the right to protect themself.

Q. Thank you. I want to turn your attention, now, to the

employees you talked a little bit about.

You testified on direct examination that you knew

employees were in fact at the refuge. Is that right?

A. I'm sorry. Could you repeat that?

Q. There's some distraction because of what's popping up on

the monitors, your Honor.

THE COURT: All right. Hold on a moment.

Let's see if we can get the distraction resolved.

THE WITNESS: A new scene (referring to monitor).

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 174 of 262
 175 Fry - X - By Mr. Knight

(Pause.)

THE WITNESS: I can answer the question.

MR. KNIGHT: We can go ahead. Thank you. 

BY MR. KNIGHT: 

Q. All right, Mr. Fry. The question was -- I'm sorry. I'll

repeat it.

You testified that you knew employees worked at the

refuge. Isn't that right?

A. It was -- it was obvious that there has -- there was

workers there.

Q. And you testified you actually believed they worked for the

Bureau of Land Management. Is that right?

A. I -- I assumed everything was Bureau of Land Management,

yes.

Q. And you actually slept in an office belonging to one of

these employees?

A. Yes.

Q. And you worked at his desk?

A. Yes.

Q. And you talked a little bit about the computer.

Now, you inserted your flash drive into his computer

to increase your computer speed?

A. No, that's not how it works. It's basic -- a computer has

a hard drive. Right? And when you turn on the computer, the

computer boots up its operating system; you know, windows XP,

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 175 of 262
 176 Fry - X - By Mr. Knight

whatever it is. And it's coming from that hard drive.

And so when I plug in my USB stick, my -- my

operating -- instead of booting from their hard drive, it boots

from my hard drive. So now the computer is actually -- it

shows up as my computer. And so their computer -- their hard

drive, and all of that stuff, isn't being accessed.

Q. But you used his computer to help your technology and your

capabilities there at the refuge?

A. I used his equipment. Technically, a computer is defined

as a -- you have to use the hard drive as well.

Q. All right. So you used his equipment?

A. Yes.

Q. And even though you didn't, quote, breach any data, you

were still using somebody else's equipment. Right?

MR. OLSON: Objection, asked and answered.

THE COURT: Overruled.

THE WITNESS: Yes. I mean, I was sitting in his

chair, too (laughing).

BY MR. KNIGHT: 

Q. Now, while you were at the refuge, you testified about

doing a number of IT-related activities. Is that right?

A. It became more media. They kind of called me the IT guy.

But it was kind of like a generic term for anybody computer

related. But it was more media stuff.

Q. Or media. So you worked with a number of people while you

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 176 of 262
 177 Fry - X - By Mr. Knight

were there at the refuge?

A. Not with. I mean, they brought me videos, and stuff, to --

to compress.

I mean, they weren't with me in the building as I was

working. They just kind of did their thing, and they brought

back some stuff.

Q. So you helped a number of other people who were at the

refuge with -- I will describe as media or, quote/unquote, IT

issues then. Is that right?

A. Yeah. That's -- actually, I did -- I fixed computers. So

that would be IT stuff, yeah.

Q. And so, for example, you helped Ms. Cox with some issues

she was having?

A. Yes.

Q. And you helped Mr. Finicum put together some videos?

A. That's correct.

Q. And these were videos to try and get the message out about

what the folks at the refuge thought was going on and why the

occupation was taking place. Is that right?

A. Yeah. It was basically -- I did -- I did several videos

and nothing in there was -- it just seemed to support the

protest as far as, you know, bringing attention, and stuff, but

nothing against employees.

Q. So they were protest related, we'll call them?

Protest-related materials?

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 177 of 262
 178 Fry - X - By Mr. Knight

A. Yeah.

Q. And you -- through this process, you mentioned some other

folks you got to know, too. You got to work with this

individual, Lee Rice, who testified?

A. I worked with him for one day.

Q. And you spent some time there getting to know different

people around the refuge. Is that right?

A. Yes.

Q. And you were at the fire, for example? You heard some

testimony about that?

A. The fire?

Q. The fire pit?

A. The -- yeah, I was -- the fire pit was kind of -- like

everybody gathered around.

Q. And so you would go there too?

A. Yeah. That's where we ate dinner, and stuff; outside

there.

Q. And you were in the bunkhouse with people?

A. Yes.

Q. Now, there was some testimony about firearms and your use

of firearms.

Now, Mr. Fry, you personally own firearms, but you

didn't bring any to the refuge. Is that right?

A. I -- see, I don't really consider owning them. My dad, he

keeps them locked in a safe. I never used them, except for the

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 178 of 262
 179 Fry - X - By Mr. Knight

.22.

Q. Okay. So except for the .22, you haven't used those guns;

and you didn't bring any personally to the refuge. Is that

right?

A. That is correct.

Q. And I think you described yourself as not much of a gun guy

earlier?

A. Yes.

Q. But you did add that bumper sticker to your car. I think

it was -- some kind of gun bumper sticker? You put that on

while were you there?

A. Yeah. It said the Second Amendment is to protect all of

your amendments.

Q. Okay. So you added that on while you were there?

A. Mmmm.

Q. Now, you testified in some detail about things changing on

January 26. Is that right?

A. That's correct.

Q. And one of those things was you testified that your state

of mind or your view changed because of the version of events

you heard, related to Mr. Finicum's death. Is that right?

So what you heard about what happened --

A. Yeah, that --

Q. -- affected you?

A. It affected me. It affected everybody.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 179 of 262
 180 Fry - X - By Mr. Knight

Q. Affected everybody.

And you described sort of -- things descending into a

little bit of chaos. Is that correct?

A. That's correct.

Q. So in addition to Mr. Finicum's death, isn't it also true

that the leadership was arrested at that time?

A. I would say the who people kept it organized were arrested.

Q. So the people who kept it organized, they were arrested at

that time, too. So that also changed the dynamic. Right?

A. It was pretty much -- yeah, it was just -- unmanaged

everything. It was chaos.

Q. So once the organizers were gone, the chaos started?

A. That's correct.

Q. Now, you -- again, you talked a little bit about not having

weapons. So it's your testimony you never touched a weapon at

the refuge until the night of the 26th. Is that right?

A. No. I -- I -- you know, I -- I looked at other people's

guns before. Like before, you know -- like some weird-looking

gun, I was like, "What is that," you know. And I have looked

at them, and stuff.

Q. Okay.

A. Touched it.

Q. So I get -- and maybe I should be more specific. So is it

your testimony that you never possessed or held a gun until --

at the refuge until the night of the 26th?

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 180 of 262
 181 Fry - X - By Mr. Knight

A. That would be -- I held one. I mean, there was this gun I

touched and held before, but I wasn't possessing it.

Q. Okay. So you held it, but you weren't possessing it?

A. It was -- it was more like -- I was -- I was looking at it.

Q. Okay. So -- well, then I guess I'll turn to the 26th.

On this night, setting aside holding that one before

the 26th, you actually had a gun. Right? A shotgun?

A. That's correct.

Q. And you were wearing, I guess, a bandolier of shotgun

shells. Do you recall that?

A. Yeah, I think -- I think you were supposed to use that as a

belt.

Q. Okay.

A. Put it on my head.

Q. And you had that around -- okay. And from that point on,

you decide to stay at the refuge until you were the last person

off. Is that right?

A. I was the last person.

Q. And so you stayed, obviously?

A. Mmmm. (Nods head.)

Q. And during that time, you actually had a number of

firearms. Isn't that right?

A. I -- I had gathered up a lot of the firearms and -- me and

other people because we noticed -- when we hadn't gathered the

firearms, when we would go back the next day to go grab some,

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 181 of 262
 182 Fry - X - By Mr. Knight

you know, water, and stuff like that, they were -- they would

end up missing.

And so we didn't feel comfortable with them taking

all of these things. So we just started gathering up as much

stuff, and brought them in one place.

Q. So you and others collected all of the firearms that were

still left after the 26th. Is that right?

A. That is correct.

Q. And then you moved them to places like your car. Right?

A. I just -- yeah, I put some in there. There was so many to

put around -- I actually knocked over -- we had them all

sitting up, you know, and I actually knocked them over. And I

was worried that there might be an accident and a misfire. And

so I put all -- some -- I put a bunch of them in there. We put

some inside the -- the -- the trailer, and so we put them in --

Q. And these were the ones -- these were just the ones left,

after folks left, that you were able to find?

A. Yeah. People just left them behind, yes.

Q. And so you went into different parts of the refuge to get

these guns. Is that right?

A. That's correct.

Q. And the different offices and the bunkhouse. Right?

A. Yeah.

Q. Now, you talked a little bit about your state of mind and

the effect the events had on you there at the end.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 182 of 262
 183 Fry - X - By Mr. Knight

You were asked if you were grieving, and you said,

no, you were -- described yourself as disgruntled. Is that

fair? You were disgruntled during this period?

A. Disgruntled.

Q. And that's one of the reasons you stayed?

A. Well, it would be like quite a mix of feelings. I mean,

you -- you're scared. You know, you're worried about

everybody's safety. And -- and you're just generally upset

about how it ended like that. It had to end in its own time.

Q. And so that's -- there are a lot of reasons you stayed,

then?

A. Yeah.

Q. Now, the FBI, during this time, starts talking to you. Is

that right?

A. On the 26th, yes, they did.

Q. And they have a number of conversations with you, some of

which the jury's heard. Is that right?

A. That's correct.

Q. And you talked a little bit about the importance of this

being a peaceful protest. Do you remember that?

A. Yes.

Q. And do you recall having any conversation with the FBI

about this?

A. Yes, we -- we spoke -- well, they -- they -- they wanted it

to end in a peaceful resolution. They --

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 183 of 262
 184 Fry - X - By Mr. Knight

Q. I'm sorry. Go ahead.

A. I mean, is that where you are going? With peaceful --

Q. Did you have discussions about that and them wanting it to

end peacefully? Do you recall that?

A. I did. We all -- I told them at the end of the day, we all

want to go home.

Q. Well, and I understand you were frustrated at the time,

Mr. Fry. But didn't you tell the FBI that it's, quote, "not

going to end peacefully"?

A. I did. I did. I really thought they were -- that they

would be the ones to come in and attack us, and so I'm assuming

that, you know, they're -- their wanting a peaceful resolution

wasn't going to end if you just didn't comply exactly as they

wanted.

Q. That was your view of it, even though they repeatedly told

you "We want this to end peacefully, and we want you to come

out of here alive"?

A. Well, it wasn't completely peaceful on their end.

Q. Okay. That's your opinion, based on what you heard.

Right?

A. Well, I mean -- I guess so.

Q. At the time. I mean, that was -- okay. Now, you talked

about a number of other things on those phone calls as well.

Didn't you talk a little bit about the federal

corruption that was still upsetting you?

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 184 of 262
 185 Fry - X - By Mr. Knight

A. Yes.

Q. And you did -- and we talked a little bit about this. But

you talked about the fact at the time you may take out as many

FBI agents as possible, if they were to come. Is that right?

A. I did say that, yes.

Q. So that's how you were feeling at the time. You made those

statements.

You also had a number of firearms at the time.

Correct?

A. Not on me.

Q. Well, I mean, you had them where you slept. Correct?

A. I had -- I had the shotgun where I slept, and stuff.

Q. And then there were a number in your car. Right?

A. Most of those I actually unloaded, but they were in there,

yeah.

Q. And there were guns in other areas of the west encampment.

Right?

A. That's correct.

Q. And you made the statement about the FBI, on the phone with

the FBI. Right?

A. That's correct.

Q. And you were upset about federal corruption. Correct?

A. Mmmm. Okay.

Q. But it's your testimony that at that moment, when you're

saying these things and you have these guns, that if a Fish &

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 185 of 262
 186 Fry - ReD - By Mr. Olson

Wildlife employee walked in, you would have let them go to

work?

A. Actually, I would have. That's the main reason why we

separated ourselves from the refuge buildings and put ourselves

in the west encampment because we were generally wanting to

disassociate ourselves with that.

And so anybody who wanted to go in at that -- I mean,

if they would have asked us, absolutely. We let the -- and we

would have let Andy Dunbar come and the FBI come if they would

have asked, yeah.

MR. KNIGHT: Thank you. No, further questions, your

Honor.

THE COURT: All right. Mr. Olson.

MR. OLSON: Thank you, your Honor.

Mr. Fry, back over of here.

REDIRECT EXAMINATION

BY MR. OLSON: 

Q. When you say you held a gun sometime before January 26th,

was that a -- a long arm or was it a small arm firearm?

A. It was actually a pistol.

Q. Pistol. Okay. And was that just kind of a momentary thing

or was that --

A. It was momentary, yes.

Q. All right. Now, Mr. Knight asked you about this phone call

with Agent Ginda.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 186 of 262
 187 Fry - ReX - By Mr. Mumford

How many hours from January 26 to February 11 -- how

many hours on the phone did you spend talking to these agents?

Guesstimate.

A. Six -- six times 14.

Q. Whatever that --

A. 84 hours?

Q. And was this the only time that you said anything like

that?

A. It is. And, again, I -- I thought I -- I thought I had

told them that, you know, if they came and attacked us, that

that was -- that was what was going to happen.

Because I mentioned -- I've talked to them multiple

times before and I said, you know, that if you guys come and

try to just start shooting at us, you know, that -- that I have

the right to defend myself.

MR. OLSON: No further questions, your Honor. 

THE COURT: All right. Any other redirect?

Yes, Mr. Mumford.

RECROSS-EXAMINATION

BY MR. MUMFORD: 

Q. You were asked about your presence there at the refuge from

January 8th to February 11th, on -- on cross-examination.

Right?

A. That's correct.

Q. And I believe the -- Mr. -- Mr. Knight said something about

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 187 of 262
 188 Fry - ReX - By Mr. Mumford

you were -- you were there for however many days that was, with

all of that stuff. And he's referring to, I think, the guns

and the ammunition. Right?

A. One more time.

Q. That stuff he referred to, referring to the guns and the

ammunition that -- that -- that was -- that he was saying was

there. Right?

A. Yes.

Q. So do you know how much of that stuff was there? Meaning

the guns and ammunition was there before January 8th?

A. I do not.

Q. Do you know how much of it was there even before? You

know, like January -- even before January 2nd?

A. I am not aware.

Q. Did you become aware that -- that there -- that -- that the

employees that worked there before the occupation had guns and

ammunition that were there?

MR. KNIGHT: I'm going to object to the basis of

knowledge and he's misstating the evidence as it's in so far.

MR. MUMFORD: It's not misstating --

THE COURT: Hold on. Just a minute. Let's not have

the back and forth. 

The jurors know what the witnesses have said. The

misstatement issue is for you to sort out, folks.

The witness has testified that he does not know. And

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 188 of 262
 189 Fry - ReX - By Mr. Mumford

when asked three different ways, he still says he does not

know.

So do not ask any more questions to make that same

point. Go ahead and ask a new question responsive to the

cross.

MR. MUMFORD: I'm sorry. I think your Honor is

mischaracterizing my question. My question was, Did you become

aware at some point.

THE COURT: And his answers have been, no, he did not

have knowledge. And so you need to ask a new question. Ask a

new question, please.

MR. MUMFORD: That was the question that got objected

to, and so I didn't get an answer on that one.

THE COURT: And I sustained the objection. Ask a

new --

MR. MUMFORD: Okay. If you sustained it, then I

understand.

BY MR. MUMFORD: 

Q. You were talking -- you were asked on cross-examination

about the chaos ensuing. Right? After the 26th, right?

A. On the night of the 26th.

Q. Okay. And you were asked sort of what -- what -- what

contributed to that.

Did the fear contribute to that?

A. To the chaos? I would say so. People just heard that

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 189 of 262
 190 Fry - ReX - By Mr. Mumford

someone was killed and another was shot.

Q. You were asked about the guns that were left behind.

Do you have any understanding as to why people left

guns behind?

A. My understanding that, the FBI told people that they cannot

leave with their firearms. And so people left them there.

Other people -- even before that message was brought out, they

did just leave their firearms and fled.

Q. And you don't know how those guns got there. Right?

A. I -- I do not. People, I guess, bring them. 

Q. And was part of that -- people leaving their guns, is

that -- they understood that the FBI -- they might encounter

the FBI, and they didn't want to be -- be seen with guns

because they were scared they were going to get shot?

MR. KNIGHT: I'm going to object to the form of the

question as argumentative and also calls for speculation

because he's asking the witness to tell what these people

thought they might do.

THE COURT: I'm sustaining the argumentative form

objection. 

You have a basis to argue from the witness's

testimony reasonable inferences but don't ask the witness to

draw those inferences. They're for the jury.

Please proceed.

BY MR. MUMFORD: 

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 190 of 262
 191 Fry - ReX - By Mr. Mumford

Q. When you were -- when you were talking about the fear, did

you have a fear of what the Government would do when they saw

you with a gun?

A. You know, I -- I was actually really kind of suicidal. I

actually walked in front of them with a gun. I was thinking,

if they're going to shoot me, just do it now. And I was

walking in front of them, but they never did. I gave them the

opportunity to kill me, but they didn't. So --

MR. MUMFORD: Thank you. Thank you, your Honor.

No more questions. 

THE COURT: All right. Thank you, sir.

MS. HARRIS: Sir -- standing up. Sorry.

Hi, Mr. Fry.

THE COURT: Hold on a minute.

MS. HARRIS: Oh, I'm sorry. I thought you were

asking -- my problem. My fault.

THE COURT: I thought it was Ms. Cox who did the

direct of Mr. Fry, so --

MS. HARRIS: Oh.

THE COURT: It's one person per witness. If she has

a redirect --

MS. HARRIS: You're right.

THE COURT: -- question, she may.

MS. HARRIS: I forgot, during the lunch break. I'm

sorry, your Honor.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 191 of 262
 192 Fry - ReX - By Defendant Cox

(Pause, Ms. Harris and Defendant Shawna Cox 

conferring.) 

RECROSS-EXAMINATION

BY DEFENDANT SHAWNA COX: 

Q. If you had gotten LaVoy's text that day, would you have

been in that -- in the truck?

A. Oh, yes. I would have. And it's -- it's -- it's kind of

scary because I had this weird feeling I was probably going to

die anyways. And if I was in that truck, maybe -- I was

thinking, you know, at the time, you know, if I was in that

truck, I would have probably had that bullet that went into

Ryan's arm in my head, or something.

Q. That was the day that people were arrested. Right?

A. It is.

Q. And the whole Sharp family went along --

MR. KNIGHT: This is now cumulative and outside the

scope -- 

THE COURT: It is outside the scope of cross.

DEFENDANT SHAWNA COX: I was laying a foundation

here.

MS. HARRIS: I think -- I'm sorry.

BY DEFENDANT SHAWNA COX: 

Q. My question is were you an organizer?

A. I was not. I was just checking out what was going on, I

guess.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 192 of 262
 193 Fry - ReX - By Defendant Cox

Q. Was Victoria Sharp an organizer?

A. No. She's a singer.

Q. Did you -- did you know if a man by the name of Booda was

an organizer?

A. I -- I had one conversation with him and --

Q. So you know who he was? I mean, you saw him. Right?

A. He was -- he was yelling at me because I was smoking some

cigarette stuff, and he -- he got mad. (Laughing.) He got

mad.

Q. But you don't know if he was an organizer?

A. No.

DEFENDANT SHAWNA COX: Okay. Okay. That's all.

Thanks, your Honor. Thank you.

THE COURT: All right. Jurors, I need you to step

out for just a short break while we get reorganized for our

next presentation.

Please leave your notes on the chair. Don't talk

about the case.

I need another hour and 15 minutes of your attention.

Watch your step, folks.

(Jurors exit at 1:12 p.m.)

THE COURT: All right. Everyone please be seated,

except Mr. Fry. You can step down.

Everyone be seated, please.

What's the next presentation?

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 193 of 262
 194 Colloquy

Is that you, Ms. Maxfield?

MS. MAXFIELD: Yes, your Honor. I would like to get

Ed Snipes on and off.

THE COURT: Okay. Is he here?

MS. MAXFIELD: He is.

THE COURT: In person, live? All of that?

MS. MAXFIELD: In person, live.

THE COURT: Please get him.

MS. MAXFIELD: Emerging on Christy (phonetic).

THE COURT: Sorry?

MS. MAXFIELD: I said emerging on Christy. 

THE COURT: And did you want that stipulation raised

when the jury comes back, first?

MS. MAXFIELD: Yes, that would be great.

THE COURT: All right. Mr. Snipes, come on up here

to the witness chair. Please watch your step.

We're going to be bringing the jury in. We'll all

stand. And then I'll tell the jury -- everybody to be seated,

except you need to stay standing, at that point, because you'll

take the oath and then you'll take a seat, okay?

THE WITNESS: Okay.

THE COURT: All right. Bring the jurors in, please.

Everybody stand for the jury.

(Jurors enter at 1:14 p.m.)

THE COURT: Ladies, why don't you go ahead and step

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 194 of 262
 195 Colloquy

on out. It looks like one of your number is not ready to come

in. There's no reason for you to be sitting here, feeling

alone. 

And everybody else can take a seat until Ms. Boyer

tells us we're ready.

You too, sir, you can take a seat. I thought we were

ready but we weren't.

(Jurors exiting.)

(Pause.)

THE COURT: Sir, what's your first name?

THE WITNESS: My first name is Charles.

(Pause, the Court and the witness conferring.)

THE COURT: Thank you, sir.

Okay. You'll repeat all of that in the jurors'

presence. I'll ask you. Thank you, sir.

(Pause.)

THE COURT: All right. Let's all stand for the

jurors.

(Jurors enter at 1:19 p.m.)

THE COURT: All right. Thank you, everyone. Please

be seated.

Jurors, you all set?

All right. The defendants' next witness is

Mr. Snipes. He's in front of you. 

Sir, would you face the jury there. Turn around and

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 195 of 262
 196 Snipes - D - By Ms. Maxfield

face them and the deputy to your right. Raise your right hand,

sir, to be sworn.

(Witness sworn.)

THE WITNESS: I do.

THE CLERK: Please take a seat.

THE COURT: Bring yourself close in to the

microphone, please.

Tell us your full name, sir, and spell all of it.

Tell us your full name and spell all of it, please.

THE WITNESS: My name is Charles Edward Snipes.

Everybody calls me Ed. That's C-H-A-R-L-E-S, E-D-W-A-R-D,

S-N-I-P-E-S.

THE COURT: Thank you.

And this lawyer, right over here, is going to ask you

some questions. Right there.

THE WITNESS: Okay.

THE COURT: Ms. Maxfield, go ahead.

DIRECT EXAMINATION

BY MS. MAXFIELD: 

Q. Good afternoon, Mr. Snipes. Can you hear me okay?

A. How's that?

Q. Can you hear me?

A. Yes.

Q. Okay. Where do you live? 

A. I live about halfway between Crane and Princeton, Oregon,

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 196 of 262
 197 Snipes - D - By Ms. Maxfield

which is about 35 miles east of Burns.

Q. And how big is Crane?

A. Oh, maybe 75 people.

Q. And what was the other town you said? Preston (phonetic)?

A. How's that?

Q. The second town you described.

A. It's Princeton. And there's probably about five people

there. It's on the east end of Malheur Lake.

Q. And how long have you lived in Harney County?

A. About ten years.

Q. What do you do there?

A. I'm a hay farmer.

Q. Did you have a career before you became a hay farmer?

A. A career, yes. In Southern Florida, I was 26 years on the

Orlando Fire Department. Before that, four years on the Mobile

Fire Department.

Q. And how did you find your way to Harney County?

A. Well, I just wanted to get away from the dense populations.

Q. Well, you did that.

A. Yes. 

(Laughter.)

BY MS. MAXFIELD: 

Q. Back in December and January, were you aware of a

controversy surrounding a rancher family called the Hammonds?

A. Yes.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 197 of 262
 198 Snipes - D - By Ms. Maxfield

Q. And on January 2nd did you go to a protest parade that

occurred in downtown Burns?

A. Yes.

Q. Sometime after that parade, did you hear about some people

occupying the Malheur National Wildlife Refuge?

A. Yes.

Q. And did you go there yourself?

A. Yes.

Q. How many times do you think you went?

A. Several times. I didn't keep track of how many times. But

I went every time I heard there was going to be any kind of

news media or any kind of function going on there.

Q. Okay. So was this a protest that held your interest?

A. Yes.

Q. Did you actually bring a hog out to the refuge for a

barbecue?

A. Yes. Yes.

Q. Okay. When you were at the refuge, did you ever meet a man

named Neil Wampler? This fellow back here?

A. Yes.

Q. And how many times do you think you had a chance to talk

with him?

A. Well, we had one extended conversation about the Hammonds

and a writ of habeas corpus to try to get them freed or find

some way to get them out of prison.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 198 of 262
 199 Snipes - D - By Ms. Maxfield

Q. Okay. And do you remember, did that occur on or about

January 14th?

A. Yes.

Q. Where did that conversation take place?

A. How's that?

Q. Where at the refuge did it take place?

A. It was in the kitchen area. There's a little dayroom and a

kitchen, and there's a bar in between. And we were standing

kind of in the hallway, in between the day room and the

kitchen.

Q. All right. And did you and he have a conversation about

the Constitution on that day?

A. Somewhat.

MS. MAXFIELD: Okay. I have no further questions.

Thank you.

THE COURT: Okay. Any cross?

MR. GABRIEL: Oh, no, cross-examination. Thank you,

sir.

THE COURT: All right. You're free to go. Thank

you, sir. 

Ms. Maxfield.

MS. MAXFIELD: Thank you, your Honor.

THE COURT: Did you have a stipulation you wanted

read?

MS. MAXFIELD: Yes, if you would.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 199 of 262
 200 Colloquy

THE COURT: All right. So, jurors, the parties

stipulate that Neil Wampler left the Malheur National Wildlife

Refuge on January 20, 2016, and did not return. Therefore,

there isn't any need to call a witness to prove that fact. The

parties agree to it. All right?

All right. Next witness presentation, please.

MR. MUMFORD: I think defendant -- your Honor,

defendants call Duane Schrock.

THE COURT: All right. Please ask him in, somebody.

MR. MUMFORD: Here, I'll get him.

(Mr. Philpot exiting courtroom.)

(Pause.)

THE COURT: Sir, would you come here, please, to the

witness chair.

Come all the way up. There are steps against the

wall. Watch your step coming on up.

Would you please remain standing, face the jury, and

the deputy there. Raise your right hand, sir, to be sworn.

(Witness sworn.)

THE WITNESS: As God is my witness, I will.

THE CLERK: Thank you. Please take a seat.

THE COURT: All right. Bring yourself close to the

microphone, please. And tell us your name, spelling --

THE WITNESS: Duane Michael Schrock.

THE COURT: Would you spell it all, please.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 200 of 262
 201 Schrock - D - By Mr. Mumford

THE WITNESS: D-U-A-N-E, M-I-C-H-A-E-L,

S-C-H-R-O-C-K.

THE COURT: Thank you.

Mr. Mumford.

DIRECT EXAMINATION

BY MR. MUMFORD: 

Q. Mr. Schrock, welcome.

Where do you live?

A. I live in Crane, Oregon.

Q. What -- what county is that?

A. Harney County.

Q. And how long have you -- have you lived there?

A. I've reside there eight years.

Q. Okay. What do you do there?

A. I ranch.

Q. Were you -- were you recently approached by -- by the FBI?

A. Yes, sir.

Q. Who was it?

A. Mr. Jones.

Q. That's Agent Ben Jones?

A. Ben Jones.

Q. Did -- what did Mr. Ben Jones tell you?

MR. GABRIEL: I'm going to object, your Honor.

This proffered testimony was limited to what we

discussed outside -- well, yesterday morning.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 201 of 262
 202 Schrock - D - By Mr. Mumford

THE COURT: Well, we also discussed this issue of the

witness having had contact with Agent Jones, and I indicated

that there could be a proffer. And if there were bases for the

objections, I would hear them as we go.

So, for now, your objection is premature.

Ask your question again, please, Mr. Mumford.

BY MR. MUMFORD: 

Q. Okay. What did Agent Jones talk to you about?

A. He asked me questions about what went on at the Malheur and

my involvement.

Q. Was this during the occupation, then?

A. Yes, sir.

Q. And over that -- how long did your conversation last?

A. Oh, approximately 30 minutes.

Q. Now, had you told -- had you told Agent Jones, prior to

that, you didn't want to talk to him?

A. Absolutely.

Q. And yet -- so this was -- this was while this trial was

going on, then?

A. I believe it -- he come to my ranch the day after he was on

the stand here in Portland.

Q. Okay. And did he want to talk with you about -- he

understood you were going to be a witness?

A. Yes, sir.

Q. Did you come to understand he wanted to talk to you about

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 202 of 262
 203 Schrock - D - By Mr. Mumford

what your testimony was going to be?

A. Yes, sir.

Q. What did he say to you about your testimony?

A. What I seen when I was at the Malheur. Different things of

that sort.

Q. Did you get the sense he was -- he was trying to tell you

what your answers should be?

A. Some of those.

Q. Was he trying to influence your -- your -- what your

testimony --

A. I felt intimidated.

Q. And how did you feel intimidated, sir?

A. He was answering the questions that he was asking.

Q. Explain.

A. He would ask me if there was something that I saw, and want

me to agree that I saw it.

Q. And even after you said that you didn't?

A. Yes.

Q. What were some of these things he was wanting you to admit

that you saw, even though that you didn't?

A. All the guns that were at the Malheur, which I did not see.

Q. Anything else?

A. Yeah, I'm thinking.

Whether I -- I visually saw anyone in the tower at

the Malheur.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 203 of 262
 204 Schrock - D - By Mr. Mumford

Q. And what did he think -- what did he tell you that your

answer should be on the --

A. Well, I explained to him that there had to be somebody up

there because Old Glory was flying from the top.

Q. And -- and what did he want you to say about that?

A. That there were people in the guard tower.

Q. Okay. Anything to do with Mr. Ammon Bundy?

A. (Pause.) Whether he was the leader of the occupation. And

I explained to him there were many people that spoke and that I

listened to all of them.

Q. Did he -- did he -- did he say at one point that he wanted

you to point your finger at -- to point the finger Mr. Ammon

Bundy?

A. He would like me to identify Ammon as the leader.

Q. And -- and did you understand that there would be -- there

could be repercussions against you if you didn't testify the

way Agent Jones wanted you to?

A. Don't know about that. I have received some of those in

other parts my business.

Q. Explain.

A. My cattle are in another state, in which the state has been

paying visits to them for reasons of they're from Harney County

and that Mr. Bundy's name was attached to them through me.

Q. So -- and have -- has -- in your business of ranching, has

this ever happened before?

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 204 of 262
 205 Schrock - D - By Mr. Mumford

A. Never.

Q. So you know -- you know Ammon Bundy though. Right?

A. I know Ammon Bundy.

Q. When did you first become introduced to Mr. Bundy?

A. Physically, on the 15th of December.

Q. Okay. What -- you mean physically on the 15th of December?

What are you referring to?

A. The meeting that was held at the Harney County fairgrounds.

Q. Were you nonphysically introduced to him before that time?

A. Prior to that, I -- I have watched videos on the -- on the

Internet.

Q. And how -- what was -- what's the significance of December

15th?

A. It was a -- it was a county -- open -- open meeting to the

county, and it was about the Hammond family.

Q. And did you -- did you participate in that then?

A. I absolutely did.

Q. When you say absolutely did, what do you mean?

A. The Hammonds are my neighbors and friends.

Q. And -- and what -- what was -- what -- did you take part,

then, in the meeting on December 15th, then?

A. I did go to the meeting.

Q. That was where -- was that where discussions took place

regarding a committee of safety, then?

A. Absolutely.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 205 of 262
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Q. Okay. And did you continue to work with Mr. Bundy after

that meeting, then?

A. Yes, I did.

Q. How?

A. I was nominated to be one of the members of the committee

of safety.

Q. And just very briefly, what did you understand to be the

purpose of the committee of safety?

A. Community safety.

Q. Now, you said you were nominated. You were -- were you

approved or --

A. I was nominated by members of the community that were at

the meeting.

Q. Okay. And from that point, when -- when do you think your

next interaction with Mr. Bundy would have been?

A. The next evening.

Q. And how often, between then and let's say the first of

January, would you say you met with Mr. Bundy?

A. I believe just that one time.

Q. Okay. Did you come to understand that Mr. Bundy had --

had -- had -- had -- had -- sorry. Was -- was -- was at the

refuge at some point?

A. Can you --

Q. Yeah, did you understand that the -- they -- they took over

the refuge. Right?

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 206 of 262
 207 Schrock - D - By Mr. Mumford

A. I wasn't in town when that happened.

Q. Okay. When did you come to understand that that happened,

then?

A. On the evening of the 2nd of January.

Q. Okay. And how did you find out?

A. A phone call.

Q. Okay. Who from?

A. I don't remember.

Q. Okay. Somebody just telling you, hey --

A. Somebody in the county.

Q. Okay. Did you go to the refuge at some point?

A. I did go to the refuge.

Q. Do you remember how soon after that?

A. Within the -- I believe the first week.

Q. Okay. And did you -- did you continue to go visit the --

A. I spent a lot of time at the Malheur.

Q. Okay. And spent a lot of time doing what?

A. I was learning what the message was that they were

protesting for.

Q. And very briefly, what was that?

A. The Constitution and our rights. 

Q. Okay. And how often -- from that point, let's say, until

the -- the January 26th, how often would you say you visited?

A. At least three times or more a week.

Q. Any particular time of day?

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 207 of 262
 208 Schrock - D - By Mr. Mumford

A. No.

Q. Okay. Did you bring others to the --

A. Yes.

Q. -- refuge?

A. Yes, I did.

Q. Why?

A. I wanted them to know what their rights were, that we were

learning by -- from Ammon. And they were willing -- they were

wanting to go to learn. And most of them were 70 years or

older.

Q. Was this in your capacity as a citizen or in your capacity

as a committee of safety, or some other -- some other capacity?

A. As a rancher to ranchers.

Q. And was there a time of day that those meetings had to take

place?

MR. GABRIEL: Your Honor, I'm going to object to the

cumulative nature of this testimony to other witnesses.

And if we could just get to the material that was

proffered.

THE COURT: I think we have enough of the material

that is now, again, cumulative. So let's get to the remainder

of what the witness has that's new, please.

Objection sustained.

BY MR. MUMFORD: 

Q. Could we just show you -- there's been an exhibit that's

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 208 of 262
 209 Schrock - D - By Mr. Mumford

been introduced into evidence.

I'm just going to show you the first little bit, and

ask you some questions about it, if that's okay.

A. Okay.

THE COURT: Can you refer to the number, please, for

the record.

MR. MUMFORD: This is -- thank you, your Honor. This

is Exhibit 50. Government Exhibit 50.

(Pause, video playing with sound.)

THE COURT: Mr. Mumford, this was supposed to be just

a few seconds for voice, and no more. You're going quite a bit

longer.

(Video stopped.)

MR. MUMFORD: No, we are going right to here, your

Honor, is where I wanted to go.

BY MR. MUMFORD: 

Q. Mr. Schrock, do you recognize that -- that handsome guy

there?

A. I believe that's me, from what I can see here.

Q. Yeah. You, were there at this meeting. Right?

A. That is me.

Q. Yeah. And who were you bringing to this -- this -- this --

this -- this -- this -- this meeting?

A. Dave Thomas.

Q. Why?

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 209 of 262
 210 Schrock - D - By Mr. Mumford

A. He is the assistant fire chief for the Crane Rural Fire

Protection Association.

Q. Was there a purpose that you wanted -- had Mr. Thomas met

Mr. Bundy before?

A. Not until this time right here.

Q. Okay. Was there a purpose that you wanted him to -- to --

to meet at that time?

A. Yes.

Mr. Thomas had been.

MR. GABRIEL: Your Honor, I'm going to object to this

witness's purpose to introducing someone to Ammon Bundy.

THE COURT: The objection is sustained.

And the point of this was for him to identify the

voice. Let's move on now.

MR. MUMFORD: Well, but I'm getting to the meeting,

your Honor.

THE COURT: Then get to it, Mr. Mumford. The

objection is sustained.

You're going all around the block. Get to the point,

please.

BY MR. MUMFORD: 

Q. There was a purpose to this meeting then. Right?

A. Yes.

Q. What was it?

A. It was for the video that he had taken of the fire that was

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 210 of 262
 211 Schrock - D - By Mr. Mumford

the previous year or two that was -- we thought was the Hammond

fire, that was on the Hammond ranch.

Q. And was that -- so did Mr. Thomas discuss that fire then?

A. Yes, he did.

Q. Had -- and had Mr. -- was it your understanding that

Mr. Bundy had heard, basically, that information from the

horse's mouth, so to speak?

A. There was video out there about the fire, yes.

Q. Okay. Gotcha.

And -- and what -- what time of day did this meeting

occur?

A. It was after dark, in the evening, five, six o'clock.

Q. Was there a reason why it was after dark?

A. Mr. Thomas was worried about somebody seeing him in the

daylight because of his job.

Q. And what was his job?

A. He's assistant fire chief of the Crane Rural Fire

Protection Association.

Q. So he understood there may be repercussions if people saw

him there, meeting with Mr. Bundy?

A. Yes, sir. Because of the equipment that they get from the

government for fire protection.

Q. Okay. And do you remember some discussion at that meeting

about the BLM employees at all?

A. Other than the fires that they were setting in the videos.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 211 of 262
 212 Schrock - D - By Mr. Mumford

Q. Okay. How about when Ms. Cox -- I believe at one point

Ms. Cox refers to the -- what was going on at the BLM office.

Do you remember that?

MR. GABRIEL: Your Honor, I'm --

THE WITNESS: Yeah, that was --

MR. GABRIEL: I'm going to object. The video speaks

for itself. And to have the witness describe what's in the

video, I think, would be inappropriate.

THE COURT: Mr. Mumford, if you wish the witness to

talk about whether he heard any discussions among those whose

discussions are relevant about Fish & Wildlife workers or BLM

workers, ask that question.

The objection is sustained.

BY MR. MUMFORD: 

Q. Okay. Do you recall hearing a discussion about BLM workers

during this meeting?

A. Yes. I was aware because Burns is a small community. Of

the --

Q. And --

A. They were -- they had a shredder truck up at the BLM

office.

Q. A shredder truck. What's that for?

A. That's for shredding documents.

Q. And so this would be -- this would have been a -- a --

something that you -- that you had seen, or others had seen?

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 212 of 262
 213 Schrock - D - By Mr. Mumford

A. No, I was told.

Q. Okay. And --

MR. GABRIEL: Well, your Honor, I'm going to object.

I move to strike on lack of foundation.

THE COURT: The reference to a shredder truck,

Jurors, are stricken. It's hearsay.

Please get to the point about what is relevant here,

Mr. Mumford.

MR. MUMFORD: Your Honor, this is relevant. This is

the relevant point.

THE COURT: No. What this witness heard someone else

say about a shredder truck is hearsay.

The objection is sustained. Ask another question.

MR. MUMFORD: Your Honor, again, we're getting --

THE COURT: Mr. Mumford, I've made a ruling. Ask

another question, please.

MR. MUMFORD: Your Honor wouldn't let me show the

entire video, so I'm having the witness describe it. That's

why I'm getting into this, your Honor. I can show the video,

if you want.

THE COURT: Mr. Mumford, what I've sustained the

objection to is the witness's testimony about someone else

telling him about a shredder truck. That's all.

Ask another question.

BY MR. MUMFORD: 

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 213 of 262
 214 Schrock - D - By Mr. Mumford

Q. Okay. During that meeting, did -- did Ms. Shawna Cox talk

about this sh -- shredder truck, then, sir?

A. Yes, she did.

Q. Okay. And what -- what kind of a conversation do you

recall having about this shredder truck during this meeting?

A. The doc -- the documents were being shredded up at the BLM

office.

Q. Now, was there -- you remember also in this meeting there

was a -- a -- a question, I think -- or a comment, I think,

that Mr. Bundy made about heat outside. Do you recall that?

A. Yes, I do.

Q. In what context did that -- did that come up?

A. In the power of the media to spread the word.

Q. And are those conversations that you had with -- with --

when you were at the refuge, about how -- what the media was

doing and how the occupiers could -- were trying to use the

media to get their message out?

A. Yeah, they -- they would use the media, to spread their

message of the protest and the power of public persuasion.

Q. Okay. Was there -- over that -- over the course of that --

that -- the time they were there, did you see them -- that

media coverage, then?

A. Absolutely. Every day.

Q. Did -- to you, did it comport with what you saw?

A. Not completely.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 214 of 262
 215 Schrock - D - By Mr. Mumford

Q. Okay. Did you try to work with the -- these individuals to

try to get it -- get it to more accurately portray? 

I'm sorry. That was -- you probably don't know what

I'm talking about.

A. I don't know if you can convince them to change the way

they report what they report.

Q. Okay. Fair enough. I want to move, if we can, to --

toward the end of the time the occupiers were there.

Were you working with Mr. Bundy in this time period?

A. Yes.

Q. Did you ever come to understand something called a -- a

nuts-and-bolts meeting?

A. Nuts-and-bolts meeting? I've heard -- I've heard that

term.

Q. Okay. What was -- what do you understand that that

nuts-and-bolts meeting was going to be?

A. I was on the committee of safety -- or I still am on the

committee of safety. And our job was to -- we had a mission

statement and goals set for taking count -- not taking but

managing our public lands, the federal lands, on a county -- on

a county -- local -- a local control issues of managing our

public resources.

Q. Okay. And was -- was -- was the significance -- do you

remember when this meeting was scheduled for?

A. No, I don't.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 215 of 262
 216 Schrock - D - By Mr. Mumford

Q. Do you remember if it was -- well, did you ever have it?

A. No, I don't believe so.

Q. And was that -- was that because Mr. Bundy was arrested?

A. Yes, sir.

Q. And so was -- did you understand one of the purposes of

this meeting was going to be to start to transition from the

occupiers to the committee of safety?

A. I believe so, yes, sir.

Q. How -- how -- how was that going to happen?

A. That's a big question. (Pause.)

The committee of safety would be in the management

position until it could have been turned over to the county

for -- for the county to manage.

Q. Now, did you understand some of the -- the transition

concerned the --

MR. GABRIEL: Your Honor, I'm going to object, even

before we get started. We're leading the witness here and --

THE COURT: The leading nature of the questions is

noted. Objection sustained.

Please don't lead the witness. Continue with your

direct.

MR. MUMFORD: Well, I think your Honor said that

answers that could be answered with a yes are not leading --

THE COURT: Not when you're editorializing in the

front end of it.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 216 of 262
 217 Schrock - D - By Mr. Mumford

MR. MUMFORD: Okay. So I'll --

THE COURT: The objection is sustained.

Ask another question in a nonleading way, please.

BY MR. MUMFORD: 

Q. I'll -- you -- you recall discussions about the work that

the occupier was doing involved questions of tracing the -- the

title and the rights to the land?

A. The deeds to the property and -- and the actual possession

and who was in possession of the property, yes, I was aware of

that.

Q. And did you have an understanding of how that was being

approached?

A. Yes. I --

Q. How was that?

A. There was a previous case on the Malheur. U.S. versus

Otley, 1949. That was an adverse possession.

MR. GABRIEL: Your Honor, I'm going to object here,

if we're talking about the witness's state of mind.

THE COURT: That's true. The objection is sustained.

His view of another case is not relevant here. He's

here to talk about the so-called nuts-and-bolts meeting, and

the facts as they existed in anticipation thereof.

The witness may not offer an opinion about case law.

Please move on.

BY MR. MUMFORD: 

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 217 of 262
 218 Schrock - D - By Mr. Mumford

Q. Was the nuts-and-bolts meeting -- was -- was this case

you're talking about have something to do with the

nuts-and-bolts meeting then?

A. Yes, it did. It was about the adverse possession.

Q. And what was -- what was going to happen at the meeting

related to the adverse possession there?

A. I was going to learn most of that at the meeting.

Q. Okay. Was it your understanding that the committee of

safety was going to step into the shoes, so to speak, of the

occupiers regarding --

A. Yes, sir.

MR. MUMFORD: -- regarding --

MR. GABRIEL: I object again, as leading, your Honor.

THE COURT: This is leading. Please rephrase your

question.

BY MR. MUMFORD: 

Q. Okay. Would these rights have to be recorded then?

A. Yes, they would.

Q. And did you try to make arrangements for that?

A. Not at that time.

Q. Well, did you help others make arrangements for that and

discussions about what the -- the plan was going to be?

A. With the committee of safety members, yes.

Q. Okay. And did that -- did that involve also discussions

about the -- getting the rights recorded at the county

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 218 of 262
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recorder?

A. Recording the grazing rights and the rights of the ranchers

that -- around the Malheur Refuge.

Q. Okay. And was that going to be part of this transition,

nuts-and-bolts meeting there?

A. Yes, sir.

Q. Do you -- do you have an understanding as to -- as -- as to

what -- as to what strategies were -- were -- were -- were

being -- were going to be discussed to try to do that?

MR. GABRIEL: I'm going to object again, your Honor.

THE COURT: The objection is sustained.

MR. GABRIEL: To his understanding.

THE COURT: This is going beyond, now, the points

that we proffered. And you've got your foundation from which

you can make argumentative inferences. But we now need to get

back to what the witness knows about the time in question.

MR. MUMFORD: Yeah, that's -- sorry, your Honor. I'm

not --

THE COURT: Ask another question.

MR. MUMFORD: I'm not listening to my own words here,

because I thought that was what I was doing.

THE COURT: Ask another question, please, 

Mr. Mumford.

MR. MUMFORD: Okay. Right on. Right on.

BY MR. MUMFORD: 

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 219 of 262
 220 Schrock - D - By Mr. Mumford

Q. So, Mr. -- Mr. Schrock, do you have an understanding as to

what the strategies that were going to be discussed at the

nuts-and-bolts meeting in -- in the respect to the transfers?

MR. GABRIEL: Your Honor, I'm going to object. If it

goes to Mr. Bundy's state of mind, then it's an allowable

answer. But if it's just his understanding from a different

source, then it's hearsay and irrelevant.

MR. MUMFORD: It's not hearsay.

THE COURT: Sir -- sir, rephrase your question to get

your client's state of mind, or move to something else. The

objection is sustained.

MR. MUMFORD: Can I have the court reporter read that

back? Because I didn't ask him to -- to say anything about

what other people said.

THE COURT: It called for a very broad response.

Rephrase the form of your question to call for a response about

your client's state of mind, which is why the witness is on the

stand, or move on.

BY MR. MUMFORD: 

Q. Okay. Can you describe, if you know, what steps were 

involved with the property disputes that you anticipated with

the federal government?

MR. GABRIEL: Your Honor, I have the same objection.

THE COURT: Mr. Bundy's state of mind is not a part

of that question.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 220 of 262
 221 Schrock - D - By Mr. Mumford

Rephrase the question to address the reason why the

witness is on the stand as to Mr. Bundy's state of mind,

please; not just any source of an answer to that question.

BY MR. MUMFORD: 

Q. You discussed with Mr. Bundy what the plan was going to be

at this meeting with respect to the -- the property disputes

that you anticipated with the federal government?

A. The plan to change jurisdiction from federal government

over to local.

Q. And as you understand what Mr. Bundy understood at that

time period, what was that?

MR. GABRIEL: Again, I'll object. He can speak to

what Mr. Bundy said, but he can't speculate as to what

Mr. Bundy believed.

THE COURT: Sir, you may answer the question with

respect to anything Mr. Bundy told you on that subject.

Go ahead.

THE WITNESS: Can I have the question repeated?

THE COURT: Yes.

Mr. Mumford, please rephrase the question, calling

for the witness's knowledge of whatever Mr. Bundy may have told

him as to those issues, related to Mr. Bundy's state of mind.

MR. MUMFORD: Okay.

BY MR. MUMFORD: 

Q. Mr. -- Mr. Schrock, what -- what did Mr. Bundy tell you

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 221 of 262
 222 Schrock - D - By Mr. Mumford

about the steps that were involved in the property -- in

dealing with the property disputes they anticipated with the

federal government as they transitioned these -- these -- these

rights over?

A. Adverse possession of the property.

Q. Okay.

A. And then local management of the property through the

county.

Q. And tell us what -- tell us, if you know, what -- what you

and Mr. Bundy discussed regarding the use that was going to be

made of -- with the property after it was -- after the -- the

title was -- was transferred over.

A. The beneficial use -- economic use of the timber and the

grazing in the county.

Q. And -- and how about with respect to the mineral rights?

A. And the mineral rights, yes. I'm sorry. I left that out.

Q. Okay. And were there -- were there -- were there plans

to -- that you discussed with Mr. Bundy about -- about

cultivating new grasslands and stuff?

A. Absolutely.

Q. What were those?

A. The land that was not being used, in nonuse.

Q. Okay. Was -- did you have discussions with Mr. Bundy

about -- about the economic impact that this -- this use would

have on the county?

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 222 of 262
 223 Schrock - D - By Mr. Mumford

A. That's what part of the committee of safety was working on,

was the beneficial use.

MR. GABRIEL: Your Honor, I'm going to object to

relevance on the economic impact pieces of this, and

cumulative.

THE COURT: I would sustain the objection, but I'm

simply going to leave it where it is. No more on this subject.

We are into cumulative material of a degree that under Rule 403

I'm going to stop. But the witness's last answer may stand.

Move to something new, please.

BY MR. MUMFORD: 

Q. Okay. Did you have a discussion with -- with Mr. Bundy in

this time period about how to handle the legal aspects or

the -- the -- the political aspects of -- of these -- these

matters in the transitionary time period?

MR. GABRIEL: Your Honor, I'm going to object as

cumulative to other committee of safety members' testimony.

THE COURT: The objection is sustained.

(Pause, Mr. Mumford, and Defendant Ammon Bundy 

conferring.) 

BY MR. MUMFORD: 

Q. Okay. This meeting, this nuts-and-bolts meeting, was there

a discussion with Mr. Bundy, in preparation of this meeting,

about -- about how the committee of safety was going to deal

with the legal and political aspects of the transition there?

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 223 of 262
 224 Schrock - D - By Mr. Mumford

A. (Pause.) It's hard for me to remember that.

Q. Okay.

A. I'm having trouble.

Q. Okay. Well, do you remember talking about having lawyers

help folks out?

A. I believe so, yes.

Q. Okay. Did you have -- did you have discussions with -- or

did you -- did you have meetings with some of the Oregon

politicians in this -- in this -- in this time period?

A. I did, with Mr. Walden.

Q. Okay. What -- what did you have a discussion with

Mr. Walden about?

MR. GABRIEL: I'm going to object as irrelevant, your

Honor, and hearsay.

THE COURT: The fact that the witness reached out to

an elected representative is not irrelevant in the context of

the defendants' theory of the case.

What the representative said to him, what happened

there, that is inadmissible. But you can establish that he

made a contact.

Please move on.

BY MR. MUMFORD: 

Q. And that -- that contact, then, was in your -- your

official role with the committee of safety then, too?

A. I did that on a personal level.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 224 of 262
 225 Schrock - D - By Mr. Mumford

Q. Okay. And you and Mr. Bundy had a discussion about --

about that afterward then?

A. No, that -- this was a meeting that I had with the

community members of Jordan Valley. And Mr. Bundy was

incarcerated at that time.

Q. Okay. So that -- that wasn't where I was going.

A. Oh, I'm sorry.

(Pause, Mr. Mumford, and Defendant Ammon Bundy 

conferring.) 

Q. At one point, was Mr. Bundy going to participate in that

meeting at Jordan Valley, then?

A. Oh, the meeting that I was going to that day, Mr. Bundy was

incarcerated that day, was the meeting we were having in John

Day.

Q. Okay.

A. That was a different meeting than the one I just described.

Q. And -- and did that meeting in John Day end up going --

going --

A. No.

Q. Before --

A. The meeting -- there was no meeting because Mr. Bundy was

arrested.

Q. Okay. Sir, did -- did -- did it affect you, having --

having Mr. -- Mr. Bundy arrested?

MR. GABRIEL: I'm going to object to the relevance of

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 225 of 262
 226 Schrock - D - By Mr. Mumford

that --

THE COURT: The objection is sustained.

MR. GABRIEL: -- question.

BY MR. MUMFORD: 

Q. Okay. Let me ask you this.

Did you ever tell Mr. Bundy that you wanted him to --

to stay?

A. Absolutely.

Q. Why?

MR. GABRIEL: I'm going to object to the relevance.

THE COURT: The objection is sustained.

The witness has already demonstrated his support for

Mr. Bundy and his involvement in the community to try to

advance what he understood were Mr. Bundy's goals.

Move on, please.

BY MR. MUMFORD: 

Q. Were you present when others would tell Mr. Bundy to stay?

A. I didn't hear that, sir. 

Q. Oh, I'm sorry. Were you present when others -- other

ranchers told Mr. Bundy they -- they -- that they wanted him to

stay?

A. Yes, sir.

Q. Well, what did Mr. Bundy say in response?

A. He was grateful that there were so many people that were

being awakened to the fact of the rights that they were losing,

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 226 of 262
 227 Schrock - D - By Mr. Mumford

and needed to know more about it.

Q. About how many -- how many times do you remember that?

That -- something like that happening?

A. Pretty much every day I was around. And the meeting that

we held at the -- at the hot springs.

MR. MUMFORD: Your Honor, just a second, if I can.

(Pause, Mr. Mumford and Defendant Ammon Bundy 

conferring.) 

BY MR. MUMFORD: 

Q. Mr. Schrock, had -- had you ever been involved in a -- a --

a political movement prior to this?

A. No, sir.

Q. What -- what did you tell Mr. Bundy last time, that you --

that you saw him?

MR. GABRIEL: I'm going to object to the relevance of

that question, your Honor.

THE COURT: The objection is sustained.

The witness's state of mind on that point is not

relevant to the material issues in this case.

BY MR. MUMFORD: 

Q. When was the last time you told Mr. Bundy that you wanted

him to stay there longer, to help -- help folks out?

A. The committee of safety had a meeting at the Malheur with

Mr. Bundy. We -- our committee is six people. We went there

with a letter that was asking Mr. Bundy to leave the premises.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 227 of 262
 228 Schrock - D - By Mr. Mumford

And there were six places for signatures and only three of the

six signed. And the other three that abstained from signing

wanted Mr. Bundy to stay because of the message that he was

sending out to the ranchers about the rights that they felt

they were all losing.

Q. And did you observe anything during all of this time that

ever caused you to question Mr. Bundy's intentions were

anything other than -- anything different than what he was

stating publicly?

A. Never.

And I forgot half that question, your Honor.

THE COURT: He was asking whether you saw anything

that changed your perspective of Mr. Bundy's beliefs, as

stated?

MR. MUMFORD: Actually, can I just ask that again?

I might have -- I might have not state -- stated it

well enough.

BY MR. MUMFORD: 

Q. Did you observe anything, during all of this time, that

caused you to question whether Mr. Bundy's intentions were

anything other than what he stated publicly?

A. I never observed anything other than that. And I told him,

at that time -- in every meeting that I had with him, I thanked

him for what he was doing and for putting his life on the line

for us. And I did not want to see him leave.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 228 of 262
 229 Schrock - X - By Defendant Ryan Bundy

MR. MUMFORD: Thank you. Thank you, Mr. Schrock.

Thank you, your Honor.

No more questions at this time.

THE COURT: Any other questions?

Yes, Mr. Bundy.

CROSS-EXAMINATION

BY DEFENDANT RYAN BUNDY: 

Q. Mr. Schrock -- Mr. Schrock, how are you today?

A. I'm good.

THE COURT: Your microphone, Mr. Bundy.

DEFENDANT RYAN BUNDY: It's on now.

THE COURT: It wasn't broadcasting. Sorry.

BY DEFENDANT RYAN BUNDY: 

Q. How are you today?

A. Good, sir.

Q. Good to see you.

That letter that you said that was produced by the

committee of safety, three signed, three did not, was that ever

actually delivered to Ammon or the people there?

A. It was delivered to the Malheur, and I delivered it

personally.

Q. Gotcha. Back to your cattle, what did you mean when you

said there was an issue about your cows in another state?

MR. GABRIEL: I'm going to object to that on

relevance grounds, your Honor.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 229 of 262
 230 Schrock - X - By Defendant Ryan Bundy

THE COURT: He testified to this on direct, without

objection, so he gets to explain what he meant.

Go ahead, sir. What did you mean?

THE WITNESS: My -- my cattle were moved to

California. The brand office came out and inspected the cattle

because you have to have health certificates and brand

transportation slips for every cow that you move.

And within ten days of the delivery, they -- which is

probably natural -- they showed up and -- and didn't even need

to see the paperwork. They just wanted to look at the cattle.

And then three and a half -- three to four weeks ago,

an inspector came from Sacramento to -- a message -- the -- the

brand inspector came from in the neighboring town of Susanville

to -- he had a request from the brand office to go and inspect

the cattle again.

And he -- while he was there, he -- the people that

manage the cattle for me said that somebody was already out to

inspect the cattle. And he was upset because this was his

district, and he had no knowledge -- prior knowledge of anyone

being there to check the cattle.

And proceeding through that process of the paperwork,

he said that they were the most talked-about cattle in

Sacramento, California, because they had the Bundy name tied to

the owner of the cattle. That they came from Harney County.

BY DEFENDANT RYAN BUNDY: 

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 230 of 262
 231 Schrock - X - By Ms. Harris

Q. And was that after you were named as a defense witness in

this case?

A. Absolute -- yeah. It was after I was subpoenaed.

Q. So have you experienced -- besides that, have you

experienced unusual treatment or anything unusual since you

were named as a defense witness?

A. (Pause.) I deactivated my Facebook account. Harassment.

And other than the visit from Mr. -- Mr. Jones, that paid my --

paid me a visit, to my ranch.

Q. Are you in fear of future repercussions will come from you

testifying today?

A. Probably.

DEFENDANT RYAN BUNDY: Thank you, Mr. Schrock. I

have no further questions.

THE COURT: All right. Anything else?

Cross?

MS. HARRIS: Yes, briefly, your Honor.

THE COURT: Oh, Ms. Maxfield. Go ahead.

MS. MAXFIELD: No questions, your Honor.

THE COURT: I'm sorry. Oh. Ms. Harris.

MS. HARRIS: Yes, I --

THE COURT: I apologize.

MS. HARRIS: It's okay. 

THE COURT: Go ahead.

CROSS-EXAMINATION

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 231 of 262
 232 Schrock - X - By Ms. Harris

BY MS. HARRIS: 

Q. Good afternoon, Mr. Schrock. I have a few questions for

you.

This meeting that's -- part of it is captured in

Exhibit 51.

Ms. Cox was not the one who set this meeting up, was

she?

A. I believe I was the one who set the meeting up, ma'am.

Q. Did Ms. Cox dictate the agenda for that meeting?

A. No, she did not.

Q. At this meeting -- and no disrespect to the gentlemen who

were present at the meeting. But would it be fair to say that

the gentlemen at the meeting did most of the talking?

A. Absolutely.

Q. You said that you went to the refuge, I think, about three

times a week during the course of the occupation.

A. Yes, ma'am.

Q. On these occasions, you saw Ms. Cox around the refuge?

A. Yes, ma'am.

Q. And what -- what did you see her carrying, when you saw

her?

A. Most of the time she had a pen and a tablet.

Q. And on occasions when you saw her in meetings, what

typically was her role?

A. She was taking notes.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 232 of 262
 233 Schrock - X - By Mr. Schindler

MS. HARRIS: I have no further questions. Thank you.

THE COURT: All right. Cross?

MR. SCHINDLER: Your Honor, I'm sorry.

THE COURT: I'm sorry, Mr. Schindler. Go ahead.

MR. SCHINDLER: That's okay. I'm way back here.

THE COURT: No. It's hard it miss you. 

Go ahead.

(Laughter.)

CROSS-EXAMINATION

BY MR. SCHINDLER: 

Q. Good afternoon, Mr. Schrock. 

You talked about the intimidation you experienced

during the course of the conversation with FBI Agent Jones.

And one of the things you indicated was you felt like he was

trying to get you to say that there were guns on the refuge

that you didn't see?

A. Absolutely.

Q. Did you see guns on the refuge?

A. I saw one long gun, and that's exactly what I told him.

Q. Who was carrying it?

A. I don't know who the gentleman was.

Q. Was he pointing it at anyone?

A. No.

Q. Do you own guns?

A. Yes, sir.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 233 of 262
 234 Schrock - X - By Mr. Schindler

Q. Did you bring any with you when you went to the refuge the

first time?

A. I travel with guns in my pickup. I live in Harney County.

Q. Well, you say that as though that's a very common thing in

Harney County?

A. Very common.

Q. And forgive me if I'm asking you a question that you

already answered.

How long have you been involved in ranching?

A. My whole life.

Q. Has it changed?

MR. GABRIEL: I'm going to object to the relevance --

THE COURT: The objection is sustained. We've

covered this general nature about the community.

MR. SCHINDLER: Thank you. Thank you.

THE COURT: Go on.

BY MR. SCHINDLER: 

Q. Did you hear anyone firing any guns during the time that

you were at the refuge?

A. I never heard a gunshot.

Q. Did you see anyone damaging any refuge property?

A. I never saw any damage to property while I was there.

Q. If you had seen someone doing something like that, what

would you have done?

A. I would have stopped it.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 234 of 262
 235 Schrock - X - By Mr. Salisbury

Q. The rights that you talked about being educated about,

I'm -- I'm not completely understanding that.

Are you saying you were never aware of these things

before you met Mr. Bundy?

A. When I moved to Harney County eight years ago, I stuck my

head in the sand, and I didn't pay attention to a lot, rather

than what was happening in front of me and living a peaceful

and quiet life.

MR. SCHINDLER: And -- I have no further questions,

your Honor.

THE COURT: Okay.

MR. SALISBURY: Judge, I have some questions.

THE COURT: Yes, Mr. Salisbury. Thank you.

MR. SALISBURY: Thank you.

CROSS-EXAMINATION

BY MR. SALISBURY: 

Q. Good afternoon, Mr. Schrock.

When you mentioned -- you talked about the FBI agent

coming and talking to you. And the other issue was the

branding of your cattle?

A. It was through the brand office in the state of California.

Q. Is the -- is the FBI involved with the brand office in the

state of California?

A. It's a state agency.

Q. Okay. Now, these things happened before you testified in

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 235 of 262
 236 Schrock - X - By Mr. Salisbury

this case?

A. Yes, sir.

Q. Why would you come in and testify anyway, in light of the

possible repercussions against you?

A. Because of repercussions against me.

Q. Can you explain that?

A. I don't know where they'll stop on -- on the harassment.

MR. SALISBURY: No further questions.

THE COURT: Okay. Now, cross, Mr. Gabriel.

MR. GABRIEL: No cross-examination.

THE COURT: Okay. Well, there you go.

MR. GABRIEL: Thank you, sir.

THE COURT: Mr. Schrock, you're free to go now.

Thank you, sir. Go ahead and step down.

Jurors, I'm going to ask you to step out briefly. We

have a video -- a potential video link with another witness.

It will be brief. But I need to set it up and I need to see if

it's going to work before we go with that.

So we'll give you a chance to stretch your legs one

more time. Notes on the chair. Please do not talk about the

case. Give us just a moment to get this set up, and then I'll

be right back with you. Okay?

Let's all stand for the jurors.

(Jurors exit at 2:15 p.m.)

THE COURT: Please be seated. Let's get this witness

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 236 of 262
 237 Colloquy

set up so that I can assess the adequacy of the presentation,

please.

Is somebody setting it up?

MR. OLSON: May I step out?

THE COURT: All right. But somebody needs to get

this witness set up by video, please.

(Pause.)

THE COURT: Okay. Do we have audio? Liam?

Sir, good afternoon.

(Judge speaking to witness displayed on monitor.)

THE COURT: We don't have audio. Hold on a minute.

We don't have audio.

No, not for you; the witness, Mr. Mumford.

MR. MUMFORD: Okay. (Pause.)

THE COURT: Mr. Mumford, if this is your witness, try

to establish contact. 

Is this your witness?

MR. MUMFORD: Yes.

Mr. Puckett, can you hear us?

THE WITNESS: Yeah, I can.

MR. MUMFORD: Okay. So I'm going to ask you

questions here.

Can we -- is it possible that we can turn his volume

up at all?

THE COURT: You can go ahead and be seated, 

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 237 of 262
 238 Colloquy

Mr. Mumford, don't get too close to your mic because it's got a

feedback going.

Now we've lost him.

MR. MUMFORD: I believe that was -- okay. Have we

got you now?

THE WITNESS: Yeah.

MR. MUMFORD: Okay. So I'm just going to ask you a

few questions real quick, just to see -- 

(Pause, electronic feedback interference.)

MR. MUMFORD: I'm sorry. What that was?

MR. NEWBY: 13th floor was doing that.

MR. MUMFORD: Can you hear us now?

THE COURT: We can't hear him.

MR. MUMFORD: Can you introduce yourself, please.

THE COURT: We cannot hear him.

MR. MUMFORD: Okay. I'm asking him to talk.

MR. NEWBY: I'm going to have to --

THE COURT: Hold on a minute. This is not working,

and so we're not going to be able to do this if we don't get

this resolved.

You're saying you have to turn off the microphones on

13.

MR. NEWBY: I'm going to have to try to connect with

them, and do it through here.

THE COURT: All right. Well, we have exactly ten

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 238 of 262
 239 Colloquy

minutes to get this done or it has to be put off.

MR. MUMFORD: Okay. Tell me when I should ask him

again. Okay?

(Pause.)

MR. MUMFORD: Okay. Mr. Puckett, can you introduce

yourself, please.

THE WITNESS: Tim Puckett.

MR. MUMFORD: Okay. So I'm just going to just

keeping talking for just a little bit here, okay?

THE WITNESS: Okay.

MR. MUMFORD: What do you do for a living?

THE WITNESS: I ranch.

MR. MUMFORD: Okay. You live -- where do you live?

THE WITNESS: I live in Burns, Oregon.

MR. MUMFORD: Great.

And, in fact, where are you -- where are you here

today?

THE WITNESS: I'm in Burns, Oregon, right now.

MR. MUMFORD: Okay. Is this at your friend's house,

then?

THE WITNESS: Yes, it is.

MR. MUMFORD: Okay. How is that, your -- your Honor?

THE COURT: Let me ask one of the prosecutors to

speak with the witness, and then I'll take your arguments.

MR. MUMFORD: And there's no -- just so you know,

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 239 of 262
 240 Colloquy

Mr. Puckett, there's no jury in the room right now. Okay?

THE WITNESS: Okay.

MR. MUMFORD: Go ahead.

MR. KNIGHT: Hi there, Mr. Puckett. My name's Ethan

Knight. I'm one of the prosecutors.

Can hear me okay?

THE WITNESS: Yeah, I can.

MR. KNIGHT: Okay. Thank you.

THE COURT: And, Mr. Puckett, my name's Anna Brown.

I'm the judge presiding here. Are you able to hear me?

THE WITNESS: Yes, I am.

THE COURT: Okay. So the issue I'm going to be

talking about with the lawyer -- and you can just listen as we

go through it -- is whether you should be permitted to testify

in this manner, as opposed to being live.

Are you unavailable to be in Portland, say, on

Monday, in the event this --

THE WITNESS: Ah, yeah. Yes, I am. I won't be

available.

THE COURT: Tell me what the conflict is, please.

THE WITNESS: My -- well, Tuesday would be my

grandma's funeral, and we're dealing with all of that right

now.

THE COURT: I'm sorry to hear that.

So what you're saying is you need to stay close to

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 240 of 262
 241 Colloquy

home to help address those issues?

THE WITNESS: Yes.

THE COURT: All right. Is your father likewise

involved in these issues?

THE WITNESS: Yes, ma'am.

THE COURT: Okay. And so -- just so you know, it may

be that the Government will try to be calling him and a similar

arrangement may need to be made, in the event they want to call

him as a witness.

Are you able to help him set up a connection like

this, if it's necessary?

THE WITNESS: Yes, I can.

If I can get -- he's a lot more busier than me, but I

know he's headed to Canada after the funeral. So --

THE COURT: Okay.

THE WITNESS: -- I don't know.

THE COURT: And that's on Tuesday? The funeral?

THE WITNESS: Yes.

THE COURT: In Burns?

THE WITNESS: In Deschutes County.

THE COURT: In Deschutes County.

Are you all expected to be in the Burns area on

Monday?

THE WITNESS: I -- it's hard to tell if we'll all be.

We're just dealing with -- I mean, it's --

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 241 of 262
 242 Colloquy

THE COURT: Sure. I understand these are hard times.

If the objection is that the witness -- witness's

demeanor, and the like, is not accessible by the jury because

he's appearing in a video format, I'm going to overrule that

objection.

His -- for the record, his image is clearly before

the screen. His voice is hearable. I think under the

circumstances, especially in light of the witness's family

loss, his personal presence would be an undue burden to him.

And for the very limited purpose and in -- under a

few minutes, the witness may testify about the very specific

issue involving the fence cutting, so that the jurors are not

to --

(Indiscernible voices over the satellite.)

THE COURT: Ooh. Is there back -- Mr. Puckett, is

that noise at your end?

THE WITNESS: Yes, it is. Sorry.

THE COURT: Is there something we can do to be sure

that doesn't happen when the jurors come in?

THE WITNESS: Okay.

THE COURT: I need to be sure of that because we're

about to bring 19 people in who are going to try to listen

carefully, and we can't have that sort of background. All

right?

THE WITNESS: Okay.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 242 of 262
 243 Colloquy

THE COURT: Do you need to talk to somebody before we

bring them in?

THE WITNESS: It's -- it's handled.

THE COURT: Okay. So I'm going to bring the jury in.

And then I'll -- I'll start by explaining to the jury what

we're doing.

The clerk will then ask you to please raise your

right hand. Would you do that for me now, so I can see how

that looks? All right.

You'll be asked to raise your right hand. The clerk

will give you the oath. And then when you say, yes -- which I

assume you will do -- I will ask you to tell us your full name

and spell it. And then Mr. Mumford will ask the very specific

questions he needs to get in without us delaying the jurors any

further. All right?

THE WITNESS: Okay.

THE COURT: Okay. Ms. Boyer, bring in the jury,

please.

We're all going to stand for the jurors, Mr. Puckett.

You can just stay where you are.

(Pause.)

(Jurors enter at 2:24 p.m.)

THE COURT: All right. Thank you, everyone. Please

be seated. And thank you, jurors.

You'll see on the screen in front of you -- at least

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 243 of 262
 244 Puckett - D - By Mr. Mumford

I hope you're seeing on the screen in front of you an image.

This is the defendant's next witness, Tim Puckett.

Mr. Puckett's had a death in the family and isn't

able to come to Portland. He's on a video feed from Burns,

Oregon.

So, Mr. Puckett, would you please raise your right

hand, and the clerk will administer the oath.

(Witness sworn.)

THE WITNESS: I do.

THE COURT: Mr. Puckett, would you tell the jury,

please, what is your full name and spell all of it.

THE WITNESS: Timothy Patrick Puckett, Jr.

T-I-M-O-T-H-Y, P-A-T-R-I-C-K, P-U-C-K-E-T-T.

THE COURT: Jr.?

THE WITNESS: Yes.

THE COURT: Thank you very much.

All right. Mr. Mumford.

DIRECT EXAMINATION

BY MR. MUMFORD: 

Q. Yes, Mr. Puckett, this is Marcus Mumford.

Mr. Puckett, where do you live?

A. I live in Burns -- well, Princeton, Oregon.

Q. Okay. How long have you been there?

A. Going on four years.

Q. What do you do for a living?

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 244 of 262
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A. Rancher, farmer.

Q. Does -- does your family also ranch?

A. Yes.

Q. How long have you been a rancher?

A. Pretty much my whole entire life.

Q. Okay. Did you graduate from high school?

A. Yes, sir.

Q. Did you do anything in between high school and going into

ranching with your family?

A. I left home as soon as I graduated, and got myself in some

trouble, and then came home.

Q. That trouble that you talk about, what sort of trouble was

that?

A. I went and I got some drug convictions and a burglary and

theft.

Q. Okay. And what prompted you to move back home?

A. I about lost my life. And I had pretty -- my -- my dad and

my family, and I about got killed.

Q. Did your family give you any conditions about moving home?

A. Yes, they did. My dad -- the only conditions that I could

come home in is go to rehab. And I couldn't mess up, or if I

failed anything on my probation, or anything, he was done.

Q. Without getting too personal, have you messed up on your

probation or anything at all?

A. Absolutely not.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 245 of 262
 246 Puckett - D - By Mr. Mumford

Q. Where is your ranch?

A. I'm off probation, and everything. I got it all --

Q. Where is your ranch located in relationship to the Malheur

wildlife refuge?

A. It's about a quarter mile, half a mile east of the

headquarters.

Q. Does your ranch share a fence with the refuge?

A. Yes, it does.

Q. Did you ever meet Mr. Ammon Bundy?

A. Yes, I did.

Q. About how many times?

A. Quite a few times.

Q. What were the circumstances, first time that you met him?

A. He came down to introduce himself, and just talked and --

because I was a neighbor to the refuge.

Q. Now, prior to this -- getting on this -- the -- a video

with you here today, did -- did my office send you a photo?

A. Yes, sir.

Q. Can you just describe what -- what's portrayed in that

photo?

A. It was me and Ammon Bundy meeting for the first time.

He came down and introduced himself, and that's the

first time I met him.

MR. MUMFORD: Okay. And just so you know, your

Honor, after this -- after this, I'm going to ask to introduce

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 246 of 262
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that into evidence. It's Defense Exhibit 1017.

BY MR. MUMFORD: 

Q. Did you meet Mr. Ryan Bundy as well?

A. Yes, I met them both. I considered them my friend.

Q. And do you know that -- you know that they were involved

in -- in the occupation of the -- of the wildlife refuge in --

earlier this year?

A. Say that again? Sorry?

Q. Do you know if they were involved in the occupation of the

wildlife refuge earlier in this year?

A. Yes, sir.

Q. And that was when -- that was -- that's -- that's the

context of those meetings with the Bundys that we're talking

about. Isn't that right?

A. Yes.

Q. Okay. And, in fact, at that time, you -- you're aware that

the occupiers were involved in removing a portion of -- of the

fence between your property and the refuge?

A. Yes.

Q. Mr. -- Mr. Puckett, did -- did they have permission to --

to -- to access your property and remove the fence?

A. They had permission to be on our property. The fence -- I

think a hired hand, or someone, gave that. But they had full

permission to be on the property for -- on our property.

I mean, we didn't have nothin' against them. They

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 247 of 262
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didn't do nothin' to us.

Q. And did you -- and you -- you said that a hired hand had

given them permission then. Right?

MR. KNIGHT: I'm going to object to hearsay, your

Honor.

THE WITNESS: Yes.

THE COURT: Excuse me. The witness already testified

to that earlier without objection.

Don't repeat it, please, Mr. Mumford. Time is of the

essence.

MR. MUMFORD: Yes.

BY MR. MUMFORD: 

Q. And, Mr. Puckett, was this a fairly significant portion of

the -- the -- the fence?

A. It was just a couple of posts of the fence. I mean, a

couple of T posts.

Q. Was the fence in good repair before the occupiers took down

that portion of the fence?

A. Absolutely not.

The fence was completely tore down from the flood.

Q. So did the occupiers cutting that section of the fence

change the function of the fence in any way?

A. Absolutely not.

MR. MUMFORD: Thank you very much.

I've got no more questions.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 248 of 262
 249 Puckett - ReD

THE COURT: All right. Anyone else? 

All right. Cross.

MR. KNIGHT: Thank you. 

CROSS-EXAMINATION

BY MR. KNIGHT: 

Q. Mr. Puckett, hi. It's Ethan Knight again. I know you

can't see me, but I just have a few questions for you. Okay? 

That fence you're talking about, that fence is

actually property of the United States Fish & Wildlife Service,

isn't it?

A. Yes. It's -- it's their fence to keep -- yes, they have to

keep us out.

Q. So you couldn't give authority to cut that fence, even if

you wanted to, could you?

A. No.

MR. KNIGHT: Thank you. No further -- no further

questions, your Honor.

REDIRECT EXAMINATION

BY MR. MUMFORD: 

Q. Were -- Mr. Puckett, were you finished with your answer,

there?

A. What was that? Sorry?

Q. Were you finished with your answer there?

A. Well, it was -- it's the wild -- or it's the refuge fence

but it's also -- would be kind of, I guess, our fence too

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 249 of 262
 250 Puckett - ReD

because it borders us, it borders them.

So -- but I don't know for sure if I have the

authority to give permission what to do with it. I know I have

authority to rebuild it when I wanted to, and -- sections of it

to keep my cows in. So I don't know for sure what -- where my

authority stands on it, but I know I have every right to go out

there and fix it.

Q. And were you -- was your family contacted by the -- the

federal government after the occupiers cut it down, and told

that you need to go out there and fix it?

A. You would have -- they didn't contact me, but my dad --

there was some kind of connection there that -- they didn't

tell him he had to go fix it. They were just wanting to know

what was going on. So I don't know for sure what the

conversation was between them and my dad.

MR. MUMFORD: Okay. And thank you -- thank you very

much.

THE COURT: All right. Mr. Puckett, thank you, sir

for make yourself available, especially under these

circumstances. We're going to disconnect the connection. All

right? Thank you, sir.

Go ahead and disconnect.

THE WITNESS: Thank you.

THE COURT: And so, ladies and gentlemen, with that,

your work this week has come to another conclusion.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 250 of 262
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I want to thank you, again, for your ongoing

attention.

I want to project tentatively a schedule for next

week. And I say tentatively because things are still in flux

and subject to change. But it's my expectation that the

evidence you've been hearing, that's going to come to an end

sometime next week. And that we will be moving into the final

jury instructions and closing arguments, which I referenced

yesterday.

And then once that happens, the -- the remaining

alternate jurors will be excused to go home and the

deliberating 12 jurors will retire to deliberate.

I want to give you just a little bit of expectation

around that, so you know what timing is like.

For deliberation purposes, your work will be

basically during the same court day hours that you've been

working. You would be here at about the same time, leave at

the same time unless all of the 12 deliberating jurors want to

work longer, in which case we will do whatever you would like

to do.

There isn't any right or wrong amount of time to

deliberate. It just is required that the jurors consider all

of the evidence. And do it calmly and dispassionately and

discuss it, and all of that. So I can't predict for you how

long that will be. It will be however long you say it is.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 251 of 262
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So once the case is in the hands of the deliberating

12 jurors, we will be waiting on you, instead of you waiting on

us. And we will -- the basic schedule is the Court's schedule,

morning to afternoon, as we've been doing it.

Now, next week, if it happens that the case is in

your hands, say, by Thursday morning, just as a hypothetical --

and, again, I can't -- I can't tell you because I don't know.

But if it happens that you're deliberating by Thursday morning,

what I would like the 12 who are expected to be those

deliberating jurors to think about is whether you would like to

work next Friday, as opposed to having that be a day -- a dark

day. Because once deliberations start, you may want to choose

to just continue them Friday, but that's going to be up to you.

The timing of your deliberations will be up to you.

We'll need updates from time to time what it is

you're planning, so we can provide lunches and ensure

everybody -- everything you need is available. So give that

some thought.

Again, it's all tentative because we don't quite know

when the case will actually be at the point where I can tell

you you've now heard all of the evidence you're going to hear

but that will be next week. I'm almost sure. I just -- you

know. I'm doing the best I can to predict, based on what I

know. So give that some thought.

Remember, you're still not to talk about the case

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 252 of 262
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with anyone, not allow anything about the case to come across

your path.

Once the case is in the hands of the deliberating

jurors, then you're -- then it is your duty to discuss it fully

and thoroughly and to determine for yourself what is or isn't

proved as a matter of fact. So that time will come, in due

course.

And then after the case is over, after verdicts are

returned, those nondeliberating jurors will be contacted.

And then once all the jury work is complete, you'll

be free to speak to whomever you want about whatever you want

except with respect to what goes on in the jury room stays in

the jury room. That's private among the deliberating 12.

You need to be frank with each other, and your

personal perspectives you can always talk about. But other

jurors -- everybody needs to be free to express their views

fairly and impartially and to get on with the decision.

So there will come a time when I won't be telling you

not to talk about it. It will come soon enough.

Just, please, you've worked this far, and -- and so

far no one has told me about anything that affects that, so

it's important we keep it that way, until the case is given to

you. All right?

So hopefully that gives you a little bit of planning

information. We'll check in with you about your desires next

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 253 of 262
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week, as we know a little more about where things stand.

Please leave your notes here. Travel safely home,

especially those of you who have long drives.

Have a good weekend. See you Monday morning, ready

to go.

Okay. Let's all stand for the jurors and thank them

for their work again.

Watch your step, folks.

(Jurors exit at 2:39 p.m.)

THE COURT: All right. Please be seated.

I want to outline what I need you to know for

scheduling for the rest of the afternoon.

At three o'clock, in this courtroom, I need to take

up an unrelated proceeding, and so all of you parties need to

be out so that those parties can have the space -- the well

space and address the issues they have to address.

At 3:30, I want to reconvene. And I do want to go

through the first draft of the final jury instructions. It's

clear to me, now, they probably can't get finalized today. But

after the process we engage in this afternoon, I'll generate a

second draft of final jury instructions. And then we'll have

another opportunity to review them before the case gets into

its final, final mode.

I have several items that I am carrying as still

pending, and we need to come to a schedule to get them finally

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 254 of 262
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resolved. And I just want to list them out, so that if I'm

missing anything, you tell me. But, otherwise, we need a plan,

when we reconvene, to come to some final decision on this. On

the things that are issues, some are just directions to you.

With respect to the Government's proffers to the

defendants about the planned rebuttal case -- and specifically,

as Mr. Schindler has been noting, for a requested opportunity

to address those issues -- I want filed before Monday morning

court, one memorandum on behalf of all defendants that sets out

any concerns about the scope of the discovery -- or, I'm sorry,

the scope of the rebuttal case. The reason I want that is we

can then get right to, at eight o'clock on Monday morning, what

those issues are in the event we're going to get to it.

It would be best for me if that's actually filed, you

know, no later than midafternoon on Sunday. I know Sundays are

maybe not good days. But while we're in recess, I suggest all

the defending parties figure out who's -- who's going to be the

lead to collect those positions and state them for everybody.

Somebody needs to do it once for everybody.

There needs to be work done with respect to the

exhibits. I raised this once a few weeks ago. The parties

need to come to an agreement as to every exhibit -- well, the

parties need to come to an agreement as to the status of every

exhibit.

Ms. Boyer's been working. She worked through that

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 255 of 262
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with Ms. Rallis and Mr. Breton before she was gone and then

back. So that needs to be updated.

Secondly, the parties need to ensure that there is a

meaningful index to the exhibits so that the jurors can find

that which you want them to find when they're looking, when

they're reviewing the evidence. 

So you need to responsibility on one side or the

other so that when the case goes to the jury, we're still not

waiting on is an exhibit actually received or not. And then

each side, as I've said before, needs to have somebody who's

accountable to guarantee to Ms. Boyer that that which is on the

list is actually physically going to the jury.

There is a pending issue with respect to Mr. Mumford

and that range of exhibits that were shown to Mr. Bundy with

respect to refreshing his recollection and the playing of those

exhibits. I ruled at the time that they were there only for

purposes of assisting the witness's testimony. And Mr. Mumford

wants that reviewed, and we'll do that in due course.

There -- I need an update on Mr. Ryan Bundy's motion

with respect to the safe, an update with respect to whatever

additional proffers he wants to make before he can rest so that

those get resolved.

We have still pending the motion to quash, which I

understand is being discussed with Mr. McDonald and Mr. Bundy

and Ms. Ludwig, as a facilitator. And we have the motion to

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compel.

With respect to the motion to compel, I understand

I'll be getting many more folders and I'll be spending the

weekend reviewing what I understand are 129 reports. And

I'm -- it's going to take some time for me.

If I can reach some preliminary conclusions about

them, I will e-mail the parties. If I can't, we'll just have

to pick up where -- where I leave off, which is we have an

issue on -- and on Monday morning.

So the Government's already been directed to make

some filings that are ex parte and under seal to facilitate my

understanding of what's there.

So that's the list of the issues I have that need to

be addressed before we could ever get to closing arguments.

Mr. Schindler?

MR. SCHINDLER: Just a point of clarification

relative to the memo that the Court would like to us file.

THE COURT: Um-hmm.

MR. SCHINDLER: I anticipate raising, essentially, a

cumulative objection to some of the Government's rebuttal.

THE COURT: So with respect to cumulative material,

you need to be specific as to who said it and how many ways

before. Sort of the reverse of what --

MR. SCHINDLER: Okay. Is it appropriate for me not

to put any direct quotes from the rough transcript --

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THE COURT: Right. You can just say, Witness X

covered this subject on date Y.

MR. SCHINDLER: Okay. Thank you.

THE COURT: And it's cumulative.

MR. SCHINDLER: Thank you.

THE COURT: If that's the point, I can evaluate it.

But, again, a general statement about cumulative is not helpful

because, first of all, it taxes my memory as to six weeks of

proceedings.

And so just, again, the subject's been covered five

times: Witness X on this date, witness Y on that date. You

don't need to quote.

MR. SCHINDLER: But it would not be appropriate to

put a cite to a page of the rough transcript?

THE COURT: If you want you can cite the page. But,

again --

MR. SCHINDLER: The rough --

THE COURT: -- the rough transcript is not to be

quoted in any filing because it is a work product tool.

MR. SCHINDLER: Understood.

THE COURT: All right. So you all figure out who's

going to do that, so it gets filed. I am going to say no later

than three o'clock Sunday afternoon. It's better earlier. 

And then the Government needs to work with that

representative to see if issues can be narrowed. 

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You all need to plan to be here at eight o'clock,

again, Monday morning, so we can go forward. But we'll talk

about this again.

I guess the one last thing I need is to know -- and

when we reconvene at 3:30, I need to know what additional

defense evidence is anticipated. I think we've covered all of

the witnesses that we've covered and the only real question is

whether there's going to be any direction to the Government to

make disclosures about these confidential human inform --

resources, whatever they are. And then Mr. Bundy's proffers

with respect to the video and the -- that other piece of

evidence, I know you want to do that on Monday.

DEFENDANT RYAN BUNDY: (Nods head.)

THE COURT: So I want to know what else is expected,

so that we can get to a place where the defendants rest, the

Government can continue to its rebuttal case, if the court

concludes it is not cumulative, and then we'll move on.

So, for now, I need Mr. Bundy, Mr. Bundy, Mr. Fry can

leave.

Everybody else, we need to leave the courtroom

because I'm going to start another proceeding here in a

different case in just ten minutes.

And then we'll -- you'll be back at 3:30. We're

going to work on jury instructions at 3:30.

Oh, and one more thing before the gentlemen leave.

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 259 of 262
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Mr. Olson, I've had an opportunity to look briefly at

the instruction proposal you filed today, a few days late.

I'll just say. Just saying --

MR. OLSON: I didn't think of it until yesterday.

THE COURT: I had a look at it. 

You didn't think of it. Okay. Fair enough.

What I would like you to think about, between now and

when we resume, is the extent to which the conspiracy

instructions don't already address your point.

One way to address potentially your point is to admit

those definitions in the context of the elements, but refer

back to the law of conspiracy as it states. 

So take a look there. I just wanted to give you a

heads-up on that issue.

MR. SCHINDLER: Judge, could we also have -- you

handed out paper copies of the --

THE COURT: You don't have yours anymore?

MR. SCHINDLER: No, I do have it, just not on me. So

if we could have an e-copy, that would be very helpful.

THE COURT: Well, or a -- would a paper copy be

better than a --

MR. SCHINDLER: Whatever is easiest for the Court.

THE COURT: We'll get you one before 3:30. We'll

have -- how many need new copies? One, two, three. Three?

Four? Make six, just in case.

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MR. SCHINDLER: Thank you.

Are we okay with leaving our stuff?

THE COURT: Yes, but -- you can leave your stuff, but

you need to leave the well of the courtroom, all of you. And

if public observers want to remain, they may, but you need to

make the well available to the next parties.

Are those the remaining --

MR. KNIGHT: I don't know if they're remaining.

They're what Mr. Barrow gave me.

THE COURT: So how many are there?

(Judge handed documents.)

THE CLERK: There's six.

THE COURT: I have seven here and three here. So

that's 13.

(Court adjourned at 2:48 p.m.)

(Please see Volume 2 for continued proceedings.)

-0- 

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Case 3:16-cr-00051-BR Document 2563 Filed 02/22/18 Page 261 of 262
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--oOo-- 

I certify, by signing below, that the foregoing is a correct 

stenographic transcript of the oral proceedings had in the 

above-entitled matter this 8th day of February, 2018. A 

transcript without an original signature or conformed signature 

is not certified. I further certify that the transcript fees 

and format comply with those prescribed by the Court and the 

Judicial Conference of the United States. 

 /S/ Amanda M. LeGore 

____________________________________ 

AMANDA M. LeGORE, CSR, RDR, CRR, FCRR, CE 

CSR No. 15-0433 EXP: 3-31-2018 

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