REPLY re: MOTION TO COMPEL, LAW ENFORCEMENT USE OF FORCE Page 1

Terri Wood, OSB #883325

Law Office of Terri Wood, P.C.

730 Van Buren Street

Eugene, Oregon 97402

541-484-4171

Fax: 541-485-5923

Email: contact@terriwoodlawoffice.com

Attorney for Jon Ritzheimer

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON

UNITED STATES OF AMERICA,

 Plaintiff,

-VSJON RITZHEIMER,

 Defendant

Case No. 3:16-CR-00051-02-BR

DEFENDANTS’ REPLY TO GOVERNMENT’S 

RESPONSE TO DEFENDANTS’ MOTION TO 

COMPEL PRODUCTION OF INFORMATION 

RE USE AND DISPLAY OF FORCE (#697)

Defendant Jon Ritzheimer, by and through counsel Terri Wood, and on behalf of 

his co-defendants, submits the following Reply to the government’s Response (#739) 

in opposition to Defendants’ Motion to Compel Production (#697).

 I. The government’s discovery obligations are not constricted by its 

narrow views of what evidence is relevant to the charges and what 

constitutes a “legally viable defense.” 

 

The government makes a sweeping rejection of producing any and all 

information sought by defendants whose discovery motion articulated 18 specific 

requests. The government does so based on two primary—and erroneous—premises: 

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First, its narrow view that “[t]he issue at trial will be whether there was an 

agreement by one or more people to impede officials from discharging duties of the 

United States and that each defendant joined in that agreement”. Second, its 

misapprehensions regarding theories of defense. See Response (#739) at 2-8.

While the jury must decide the ultimate issue of whether the government has 

proved the charged conspiracy, that is far from the only issue for the jury. For 

example, the jury will decide whether the evidence supports various theories of 

defense; and the jury must determine both the credibility and bias of government

agents, and the weight of the evidence against the accused. 

“Rule 16 permits discovery that is ‘relevant to the development of a possible 

defense.’” United States v. Muniz-Jaquez, 718 F3d 1180, 1183-84 (9th Cir. 

2013)(citation omitted). This Court has already determined that defendants may 

pursue a First Amendment defense at trial. Law enforcement’s display of force against 

peaceful protestors corroborates defendants’ purpose in carrying firearms to 

symbolically proclaim themselves free men in the face of governmental tyranny and 

oppression, discussed in greater length in the Memorandum (#698). In addition, this 

Court’s rulings regarding the Second Amendment neither address nor foreclose the 

constitutional self-defense theory outlined in the supporting Memorandum (#698).1

The government’s arguments that these constitutionally-based defenses as well 

as common-law self-defense are not “legally viable,” Response at 5-8, put the cart 

before the horse: The parties are in the pretrial phase, not closing arguments. The 

 

1 “The Court notes Defendants may contend at trial that their conduct was protected 

by the First Amendment and that they, therefore, did not violate [18 USC] §372.” 

Order (#650), at 9 n.3; see Order (#649)(rejecting a purely facial challenge to Count 

2, that the statute “directly violates the Second Amendment”) at 10 & n.3.

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information sought need not be admissible in evidence in order to be discoverable, so 

long as it is reasonably likely to lead to admissible evidence. United States v. Price, 566 

F.3d 900, 912-13 (9th Cir. 2009)(discussing standards for determining pre-trial 

disclosure of Brady materials); see also, Muniz-Jaquez, supra at 1183 (noting Rule 16 

discovery is “broader than Brady”). “[I]f doubt exists, it should be resolved in favor of 

the defendant and full disclosure made.” Price at 913.

The government’s narrow view of the case leads to its claim that “[t]he jury will 

not be asked to decide if law enforcement responded appropriately to the armed 

takeover of the MNWR,” Response at 5, and its faulty conclusion that “[d]etails 

regarding the law enforcement response to the occupation are not relevant to the 

defendants’ response to the government’s case-in-chief,” id., at 6.2 This ignores what 

the United States Supreme Court recognized more than 20 years ago: “A common trial 

tactic of defense lawyers is to discredit the caliber of the investigation or the decision 

to charge the defendant, and we may consider such use in assessing a possible Brady

violation,” Kyles v. Whitley, 514 U.S. 419, 446 (1995). “When, for example, the 

probative force of evidence depends on the circumstances in which it was obtained and 

those circumstances raise a possibility of fraud, indications of conscientious police 

work will enhance probative force and slovenly work will diminish it.” Id., 446 n.15.

Circumstances related to the FBI’s conduct during the January 26th ambush of 

some defendants and the homicide of LaVoy Finnicum which are under investigation by 

the OIG and a federal grand jury “raise a possibility of fraud.” That information is the 

subject of a separate motion and memorandum (#700 & #701). However, the FBI is 

 

2 The relevancy of the requested information to the defense was partially addressed in 

(#698), pages 7-10, and not reiterated here.

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the lead investigative agency in this case. Whether it followed the policies and 

procedures contained in its written Rules of Engagement and Operational Field Orders

in the days leading up to the ambush—as well as on that date and the days that 

followed—is material to the defense, as broadly recognized by Kyles, and further set 

forth in (#701), incorporated by reference herein. Whether those rules and orders 

authorized a display of massive force,3 or other forms of psychological warfare,

designed to provoke what could then be touted as violent action by protestors, and 

fed to the media to demonize defendants, is material to the defense.4 Information that 

helps the defense “conduct an effective cross-examination” of government witnesses 

is “material” under Rule 16. Muniz-Jaquez, supra, at 1184; United States v. Budziak, 

 

3 As of January 10th, the FBI believed there were approximately “50 occupants” at the 

Refuge, but only “roughly 20 . . . have a weapon and engage in a security role.” Those 

50 include women and approximately 6 children. MNWR_0026533. This is the “heavily 

armed occupation” the government claims made “necessary” the law enforcement 

response that it resists fully disclosing. Response at 7-8. Discovery contains limited and 

date-restrictive FBI emails showing: On 1-10-16, 12 agents from field offices in 

Sacramento, Salt Lake City, San Francisco, Portland, and Seattle were ordered deployed 

for approximately two weeks to “shadow your respective SWAT teams in Burns” 

MNWR_0026549-50. In addition to multiple SWAT teams, the FBI deployed snipers 

(long before the ambush), MNWR_0026523, and Hostage Response Team(s) (HRT), 

MNWR_0026608. Oregon State Police and deputies from 17 Oregon sheriff’s offices 

also deployed to Harney County during the sit-in at the Refuge.

4 Defendants are entitled to show the FBI waged a “War of Words,” where what was at 

worst trespass got repeatedly recast as domestic terrorism: For example, peaceful 

albeit armed protestors officially portrayed as “armed radicals” and “armed criminals” 

intimidating “innocent men, women and children” and seeking “occasions for 

confrontation.” See Exhibit 101 (emails showing coordination between Gov. Brown and 

the FBI Director prior to Brown’s 1-20-16 letter, quoted above). Collusive propaganda 

in this case underscores the FBI’s bias and motive to justify military-style tactics 

against US citizens exercising their First and Second Amendment rights. Utilizing those 

tactics against protestors—the same used against domestic terrorists—has historically 

gotten the FBI in political “hot water.” See, e.g., Office of Inspector General, “A Review 

of the FBI’s Investigations of Certain Domestic Advocacy Groups,” (September 2010); 

ACLU, “Unleashed and Unaccountable: The FBI’s Unchecked Abuse of Authority,” 

(September 2013). Avoiding congressional scrutiny, media backlash, and executive 

displeasure is a strong motive for the FBI to paint the Refuge protestors as terrorists.

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697 F3d 1105, 1112 (9th Cir. 2012). Any evidence that a prospective government 

witness is biased or prejudiced against the defendant, or has a motive to lie, 

exaggerate, falsify, or distort his testimony is exculpatory. See, United States v. 

Bagley, 473 U.S. 667, 683 (1985).

Information that is not exculpatory or impeaching may still be relevant to 

developing a possible defense. See United States v. Doe, 705 F.3d 1134, 1151 (9th 

Cir.2013)(“Even if the documents [requested under Rule 16] caused [defendant] to 

completely abandon [his] entrapment defense and take an entirely different path, the 

documents would still have been ‘material to preparing the defense’ under Rule 

16(a)(1)(E)(i).”). 

The Ninth Circuit recognizes that even inculpatory evidence may be material. 

Muniz-Jaquez, supra at 1183 (“A defendant who knows that the government has 

evidence that renders his planned defense useless can alter his trial strategy. Or he can 

seek a plea agreement instead of going to trial.”). Thus, for example, some defendants 

wish to argue that the FBI has an institutional bias against them dating back at least to 

the Nevada stand-off at the Bundy Ranch; and that bias has infected individual FBI 

agents; and that bias can be circumstantially shown at trial by reference to the Rules of 

Engagement, Operational Field Orders, and records or emails recounting daily briefings 

and intelligence analysts reports, whether those documents are admissible as tangible 

evidence or provide the basis for meaningful cross-examination. If defendants’ 

expectation of what is in those records proves incorrect upon being granted pre-trial 

production, defendants may alter their trial strategy. 

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 2. The government’s discovery obligations are not satisfied by bits 

and pieces of responsive information that defendants find through their 

own investigation, nor by what defendants’ personally know about the 

facts. 

 

The government notes that some of the information at issue “may be gleaned 

from reports already provided.” Response at 4. Discovery contains a smattering of 

some FBI agents’ emails on sporadic dates during the protest at the Refuge, discussed 

in the next section of this Reply. The government asserts “existing discovery and 

[other] materials readily available to defendants provide ample evidence . . . [that] law 

enforcement officers responded to the occupation and did so equipped with firearms 

and other law enforcement equipment,” such that the additional information at issue 

“is not material to the defense.” Id., at 7-8. The government also implies the 

defendants’ personal knowledge of law enforcement’s use and display of force is what 

is relevant, therefore excusing the government from providing any of the requested 

material. Id., at 7.

The duty to disclose encompasses even those documents and statements the 

defense might already have, as well as information within the defendant’s personal 

knowledge. Gantt v. Roe, 389 F.3d 908, 913 (9th Cir. 2004)(rejecting district court’s 

conclusion that material evidence was not “suppressed” within the meaning of Brady

because the defense could and should have discovered it itself); United States v. 

Howell, 231 F.3d 615, 625 (9th Cir. 2000). As the Ninth Circuit explained in Howell:

The government's contention that it had no duty to disclose the 

[information] to the defense because Howell knew the truth and could 

have informed his counsel is wrong. The availability of particular 

statements through the defendant himself does not negate the 

government's duty to disclose. See United States v. McElroy, 697 F.2d 

459, 465 (2d Cir.1982). Defendants often mistrust their counsel, and 

even defendants who cooperate with counsel cannot always remember 

all of the relevant facts or realize the legal importance of certain 

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occurrences. See id. Consequently, “[d]efense counsel is entitled to plan 

his trial strategy on the basis of full disclosure by the government 

regardless of the defendant's knowledge or memory of the disclosed 

statements.” Id.

Furthermore, this Court's Rule 16 inquiry does not end merely because the 

government says the requested documents are not material. As the Ninth Circuit has 

instructed: 

In cases where the defendant has demonstrated materiality, the district 

court should not merely defer to government assertions that discovery 

would be fruitless. While we have no reason to doubt the government's 

good faith in such matters, criminal defendants should not have to rely 

solely on the government's word that further discovery is unnecessary. 

United States v. Budziak, 697 F3d 1105, 1112-13 (9th Cir. 2012). See also, Gantt, 

supra, 912–913 (“Brady is not confined to evidence that affirmatively proves a 

defendant innocent”).

Nor does the government fulfill its Brady obligation by making only partial 

disclosure. See, Banks v. Dretke, 540 U.S. 668 (2004)(giving defendant just enough to 

“seek out” evidence does not meet due process standard).

 3. The information defendants seek is within the government’s 

possession and control, and not “extraordinarily burdensome” to produce. 

 

The government opines that records responsive to some specific requests seem 

unlikely to exist. Response at 9. However, the government has yet to communicate a 

response from the FBI or other involved agencies that its guess is correct. By 

addressing only “documents that inventory individuals and equipment responding to 

the occupation on a daily basis with the details requested by the defense” in this 

section of its Response,5 the implication is that information responsive to the 

 

5 These items are described in 5 specific requests, #3-#8, (#697) at 3-4.

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remaining 12 specific requests in the Motion to Compel does exist, but has not been 

produced because the government deems it not material to the defense.6

Defendants requested “all records, regardless of format and including 

photographs or videos, containing information responsive to the [18 numbered, 

specific requests in the motion].” (#697) at 2 (emphasis supplied). Defendants 

nowhere sought to compel the government to “compile and summarize information 

from multiple sources” in order to supply “an inventory of officers and equipment,” 

Response at 9, if no inventory or partial inventory exists apart from the underlying 

source records. Given that all law enforcement data is digitized these days, the 

government has made no plausible claim that obtaining and supplying records 

containing responsive information would be “extraordinarily burdensome,” id.

Furthermore, information culled from the public domain as well as the smattering 

of FBI emails from discovery support a strong inference that the government can 

readily obtain records relevant to the specific requests. Defendants have previously 

alerted the government to the following:

Emails obtained via public records requests to the Oregon Governor’s Office 

show that state and local authorities were working as partners and under the direction 

of the FBI on matters including managing the media, preparing for a Mass Casualty 

Incident, and receiving information about the coordinated law enforcement response to 

the protest. See Exhibit 102, attached. Page 2 of that exhibit is a photo of the Daily 

Briefings schedule for Patrol, Public Information Officers, Command Post, Law 

Enforcement, and other divisions. Information provided during daily briefings would of 

 

6 Productive conferral regarding the specific items sought has been stifled by the 

government’s blanket rejection of all items as not discoverable, ending discussion.

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necessity be transmitted to others in the chain of command via email, text, etc., as 

well as be drawn from records documenting personnel present, weapons, gear, etc.

The Discovery contains BLM law enforcement emails noting the set up of the 

Joint Information Center, MNWR_0028563; that the FBI and state/local law 

enforcement established a Joint Incident Command Center as of 1-4-2016, 

MNWR_0028564; and that the FBI receives information from other law enforcement 

agencies involved in the investigation and response to the protestors, 

MNWR_0028561.

Discovery also contains a small number of FBI emails that pertain to some 

activities on several days during the protest. Those emails include discussion of sniper 

placement, MNWR_0026523; discussion of particular SWAT team rotations, 

MNWR_0026527; deployment of personnel for SWAT teams, MNWR_0026531; the 

SITREP report for January 10th (indicating there is at least one of these FBI Intelligence 

Analysts reports generated each day assessing the threat posed by protestors, among 

other relevant topics), MNWR_0026533; reference to the “FBI Accountability Matrix—

Burns Response” that “contains a list of personnel at the Forward CP, TOC, NOC, and 

other locations,” MNWR_0026534;7 information that a militia organization, the PPN, 

has gathered regarding FBI bringing in a combat surgical team, military-style air assets, 

and other signs of law enforcement build-up, MNWR_0026551; FBI Bearcat transported 

through Burns to Bend, MNWR_0026563; Operations OGURA and Anaconda, 

MNWR_0026553-55; and talking points used with protestors, including “if you point a 

weapon at law enforcement . . . deadly force may be used,” MNWR_0026564.

 

7 “CP” is thought to mean Command Post; “TOC” to mean Tactical Operations Center; 

“NOC” is unknown to defendants.

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Because the government has already disclosed information via these few emails 

that is material to the motion at hand, the government could readily obtain the rest of 

the emails from involved agents and for the days not covered. It appears from those 

sources Defendants could compile the information sought by their motion. The 

government could also readily obtain official records, such as the “FBI Accountability 

Matrix—Burns Response” that supplies information on total number of agents (and 

perhaps other information concerning weapons, vehicles and aircraft on hand). It is also 

reasonable to assume the Joint Incident Command Center would have records of the 

number of state and local police agents and their assignments (e.g., sniper duty), as 

part of the command process.

Conclusion 

Through the Motion (#697) and Memorandum (#698), the related Memorandum 

(#701) incorporated by reference, and this Reply, Defendants have identified casespecific records and categories of records, in the government’s possession, and made 

the threshold showing that this information is helpful to the defense. The information is 

helpful to the preparation and presentation of possible defenses at trial, corroboration 

of Defendants’ non-criminal intent, and meaningful cross-examination of government 

agents, whether called as witnesses by the prosecution or defense. This Court should 

therefore grant the Motion To Compel Production (#697), or if it has concerns not 

addressed in the pleadings, set oral argument for the July 6th status conference.

RESPECTFULLY SUBMITTED this 27th day of June, 2016.

/s/ Terri Wood

TERRI WOOD OSB 883325

Attorney for Ritzheimer

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