BILLY J. WILLIAMS, OSB #901366 

United States Attorney 

District of Oregon 

ETHAN D. KNIGHT, OSB #992984 

GEOFFREY A. BARROW 

CRAIG J. GABRIEL, OSB #012571 

Assistant United States Attorneys 

ethan.knight@usdoj.gov

geoffrey.barrow@usdoj.gov 

craig.gabriel@usdoj.gov

1000 SW Third Ave., Suite 600 

Portland, OR 97204-2902 

Telephone: (503) 727-1000 

Attorneys for United States of America 

UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

UNITED STATES OF AMERICA 

 v. 

DAVID LEE FRY, 

 Defendant.

3:16-CR-00051-BR-13

GOVERNMENT’S SUPPLEMENTAL 

RESPONSE TO DEFENDANT FRY’S 

MOTION TO COMPEL 

DISCOVERY (#493)

 The United States of America, by Billy J. Williams, United States Attorney for the 

District of Oregon, and through Ethan D. Knight, Geoffrey A. Barrow, and Craig J. Gabriel, 

Assistant United States Attorneys, hereby responds to defendant Fry’s Motion to Compel 

Discovery (ECF No. 493). 

 The government is filing this supplemental response to Defendant’s Motion to Compel 

Discovery in response to the Court’s May 17, 2016, Order (ECF No. 575). Defendant filed the 

Motion to Compel Discovery seeking records of communications relevant to a motion to 

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Government’s Supplemental Response to Defendant Fry’s Motion to Compel 

Discovery (#493) 

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suppress statements by defendant. The government responded by stating that it did not intend 

to introduce any of the relevant statements of defendant at trial, and therefore defendant’s 

Motion should be denied as moot. (Gov’t’s Resp., ECF No. 569). The Court subsequently 

ordered the government to supplement its original response with specific information addressing 

whether or not there are fruits of the violation of defendant’s Sixth Amendment right. (Ct. 

Order, May 17, 2016, ECF No. 575). The government’s supplemental response is set forth 

below. Based on the information tendered below, it continues to be the government’s position 

that defendant’s Motion should be denied as moot. 

I. Factual Background 

Defendant’s Motion arises from the circumstances surrounding his February 11, 2016, 

post-arrest statement. On February 11, 2016, at approximately 11:00 a.m., defendant was 

arrested at the Malheur National Wildlife Refuge. At the time of his arrest, defendant was the 

sole remaining occupant of the Refuge. Following his arrest, defendant was taken into custody 

and interviewed by the FBI. “[A]t or near the time of his arrest,” defendant’s appointed 

counsel, Mr. Olson, invoked his Fifth and Sixth Amendment rights to counsel. (Def.’s Mot. 2). 

Counsel invoked defendant’s right to counsel by contacting the United States Attorney’s Office 

and, separately, members of the FBI through Federal Defender Lisa Hay. (Def.’s Mot. 2). 

Mr. Olson contacted Assistant United States Attorney Ethan Knight at 11:07 a.m. to 

invoke on his client’s behalf. At 11:11 a.m., AUSA Knight emailed Supervisory Special Agent 

(SSA) Gary Adler and Special Agent (SA) Rich Baltzersen to notify them that Olson had 

invoked on his client’s behalf. (Ex. 1). SSA Adler and SA Baltzersen were the lead agents 

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Government’s Supplemental Response to Defendant Fry’s Motion to Compel 

Discovery (#493) 

Page 3

responsible for the criminal investigation of defendant. They were in direct contact with the 

United States Attorney’s Office regarding the investigation. They were located in Portland, 

Oregon. Approximately ten minutes after Knight emailed Adler, SSA Adler forwarded 

Knight’s email to multiple FBI personnel in Burns, Oregon. 

According to an FBI 302 report documenting the interview of defendant, Special Agent 

Sean Hamblet and Special Agent Eric Thompson took defendant into custody at 12:15 p.m. At 

12:18 p.m. defendant received his Miranda warnings, and the interview began. Defendant then 

provided agents with a lengthy statement regarding his activities on the refuge. 

II. Because Counsel for Defendant Invoked Defendant’s Fifth and Sixth Amendment 

Rights on His Behalf Prior to Law Enforcement Contact with Defendant, the 

Government Will Not Use Defendant’s Statement or Evidence Derived from the 

Statement at Trial 

The government acknowledges that Mr. Olson invoked defendant’s right to counsel on 

his behalf. The government further acknowledges that this information was communicated to 

the FBI. The government acknowledges that agents should not have questioned him. The 

government has identified one item—a thumb drive—the discovery of which may have been 

derived from defendant’s statement. The thumb drive has not been searched and the 

government will not offer this item at trial. To the extent the parties can identify any other 

items the discovery of which may have been derived from defendant’s statement, the government 

will not introduce those items at trial. 

/ / / 

/ / / 

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Government’s Supplemental Response to Defendant Fry’s Motion to Compel 

Discovery (#493) 

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III. Conclusion 

For the reasons stated above and because the government has affirmatively represented 

that it will not use defendant’s statements or any evidence derived from them, defendant’s 

Motion for discovery of communications should be denied. 

 Dated this 25th day of May 2016. 

 Respectfully submitted, 

 BILLY J. WILLIAMS 

 United States Attorney 

 s/ Ethan D. Knight 

 ETHAN D. KNIGHT, OSB #992984 

 GEOFFREY A. BARROW 

 CRAIG J. GABRIEL, OSB #012571 

 Assistant United States Attorneys 

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