Amy Baggio, OSB #011920

amy@baggiolaw.com

Baggio Law

621 SW Morrison, Suite 1025

Portland, OR 97205

Tel: (503) 222-9830

Fax: (503) 274-8575

Attorney for Defendant

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

UNITED STATES OF AMERICA,

Plaintiff,

v.

JOSEPH O’SHAUGHNESSY,

Defendant.

No. 3:16-mj-00004

DEFENDANT’S RESPONSE TO

GOVERNMENT’S MOTION TO

REVOKE RELEASE ORDER

PROCEDURAL POSTURE

On January 26, 2016, Joseph O’Shaughnessy was arrested in Burns, Oregon. He and seven

others were charged in a federal complaint with conspiring to impede, by force, intimidation, or

threat, officers from discharging their duties in the Malheur National Wildlife Refuge in violation

of 18 U.S.C.§ 372. (CR-14). On January 27, 2016, Mr. O’Shaughnessy made his first appearance

in federal court on the complaint. (CR-15.) At that initial hearing, the Court set a preliminary

hearing for February 3, 2016, and scheduled arraignment on any subsequent indictment for February

24, 2016. (CR-16.) Also at this first appearance, the government asked the Magistrate Judge to

defer a release decision for two days, until Friday, January 29, 2016. 

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On January 29, 2016, the Magistrate Judge held a detention hearing pursuant to 18 U.S.C.

§ 3142(f). (CR-32.) United States Pretrial Services submitted a report to the Magistrate Judge in

advance of the hearing. The report recommended Mr. O’Shaughnessy be released. After receiving

evidence and hearing argument from the parties, the Honorable Stacie Beckerman – the same judge

who found probable cause to issue the complaint – concluded that the defense presentation at the

release hearing was “compelling, especially the fact that Mr. O’Shaughnessy has not -- did not spend

meaningful time within the refuge with the other -- the group of armed occupiers. I find that to be

a compelling fact in his favor.” In light of her findings, the Magistrate Judge ordered Mr.

O’Shaughnessy released on conditions. (CR-32.) The government asked Judge Beckerman to stay

the order so that it could seek review. On February 1, 2016, the government filed a motion to revoke

Judge Beckerman’s release order. (CR-44.) This Court has scheduled a hearing on the government’s

motion for February 2, 2016, at 11:00 a.m. 

APPLICABLE LAW

The Basic Framework

The Bail Reform Act, 18 U.S.C. § 3142(b), creates a presumption for release on one’s own

personal recognizance unless the judicial officer finds that release will not reasonably assure the

appearance of the person as required, or will endanger the safety of the community or any person. 

If the Court determines that recognizance release will not reasonably ensure both the defendant’s

appearance and the safety of the community, §3142(c) directsthe Court to release the person on “the

least restrictive” condition or set of conditions. Detention is appropriate only if “no condition or

combination of conditions will reasonably assure the appearance of the person as required and the

safety of any other person and the community.” 18 U.S.C. §3142(f).

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The Government’s Burdens

In seeking detention, the government bears the burden of proof as to both risk of flight and

danger to the community. The standards of proof differ for each prong; the government must

establish flight risk by a preponderance of the evidence and danger by clear and convincing

evidence. United States v. Gebro, 948 F.2d 1118, 1121 (9th Cir.1991); United States v. Motamedi,

767 F.3d 1403, 1406 (9 Cir. 1985). The federal rules concerning admissibility of evidence in th

criminal trials are inapplicable. 18 U.S.C. § 3142(f). The Court may base its findings on proffer and

hearsay. United States v. Winsor, 785 F.2d 755, 756 (9th Cir.1986). 

Factors Weighing On The Release Decision

Factors to be considered by the Court in assessing release or detention include: the nature

and circumstances of the alleged offense; the weight of the evidence; the history and characteristics

of the person; and the risk of danger to any person or the community in general. 18 U.S.C.

§3142(g).

Standard Of Review

Review of the facts underlying a magistrate judge’s release order is de novo. United States

v. Koenig, 912 F.2d 1190, 1192-93 (9 Cir. 1990); United States v. Lopp, 2015 WL 5139367 (N.D. th

Ca. Sept. 1, 2015) (same). 

APPLICATION OF THE LAW TO THE FACTS IN THIS CASE

The Nature And Circumstances Of The Offense & The Weight Of The Evidence

Mr. O’Shaughnessy is charged with conspiring, or agreeing together, with co-conspirators

to prevent by force, threat, or intimidation, U.S. Fish and Wildlife officers from discharging their

duties at the Malheur National Wildlife Refuge (MNWR) in violation of 18 U.S.C. § 372. The

nature and circumstances of the offense and weight of the evidence appear to be the factors argued

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most strenuously by the government as favoring detention. However, consistent with the findings

of the Magistrate Judge, a closer review of the complaint, combined with additional evidence

proffered by the defense, illustrates the true frailty of any claim that Mr. O’Shaughnessy agreed to

work with others to take over the refuge. 

The affidavit attached to the complaint sets forth four primary occurrences in an attempt to

establish probable cause against the eight codefendants: (1) The Hammonds’ Sentencing; (2)Armed

Occupier Activity In Harney County, October 5-December 31, 2015; (3) January 2016 Takeover Of

The MNWR; and (4) Social Media Reports And Posts. 

1. The Hammonds’ Sentencing, Complaint Pages 3-5

Mr. O’Shaughnessy had no involvement in the Hammonds’ case. He did, however – like

the original sentencing judge – believe that five-year mandatory minimum sentences for the two men

was too harsh a punishment. Such belief is no basis to find Mr. O’Shaughnessy either a danger or

a flight risk. Strike One. 

2. Armed Occupier Activity, Complaint Pages 5-7 

As part of its presentation on probable cause, the complaint alleges several events that the

federal agent claims took place in Harney County from October 5 until December 31, 2015. 

Initially, the defense notes that this section is referred to as “Armed Occupier Activity;” however,

as discussed in more detail below, Mr. O’Shaughnessy is not one of the armed occupiers. As to the

other allegations in this subsection, the defense submits:

• Mr. O’Shaughnessy was not in Oregon in October 2015 to meet with

Sheriff Ward (compare Complaint, page 5, paragraph 12);

• Mr. O’Shaughnessy was not in Oregon at the time of the videos

posted to “Harney County Liberty News” from December 12-15,

2015 (compare Complaint, page 5, paragraph 13-14);

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• Mr. O’Shaughnessy was not in Oregon at the time of the troubling

incident involving a BLM employee on December 18, 2015 (compare

Complaint, page 6, paragraph 14); and

• Mr. O’Shaughnessy was in Oregon on December 26, 2015, when a

video was posted in which Mr. O’Shaughnessy and others asked for

“patriots” to travel to Burns to march in support of the Hammonds.

Thus, on the face of the complaint, three of the four allegations in this section do not involve

Mr. O’Shaughnessy and have absolutely no bearing on him as either a danger or flight risk. Mr.

O’Shaughnessy was specifically named in the fourth occurrence: participation in a video asking

people to travel to Burns to show their support of the Hammonds. Participating in a video that asks

others join in the Hammonds March is equal parts peaceful assembly and protected speech. The

government should refrain from arguing protected conduct as a basis for pretrial detention. In sum,

the allegations in the “Armed Occupiers Activity” section of the complaint provide no evidence to

suggest Mr. O’Shaughnessy is either a danger or a flight risk. Strike Two.

3. January 2 Takeover Of MNWR, Complaint Pages 7-11

Mr. O’Shaughnessy was one of hundreds of protestors who came to Burns to show their

support for the Hammond family. Mr. O’Shaughnessy is proud to have participated in the peaceful

march in support of the Hammond family on January 2nd. 

It was immediately after the Hammond March that the occupiers left to take over the refuge. 

In both its complaint (page 7, paragraph 17) and in its Memorandum In Support of Detention (page

6), the government claims that Mr. O’Shaughnessy was a leader of the group of occupiers and that

he was one of the first to occupy the refuge. These accusations are patently untrue. Mr.

O’Shaughnessy neither led the occupiers, nor participated in the takeover. To the contrary, as the

defense will proffer in this proceeding, Mr. O’Shaughnessy made numerous statements among

Hammond March participants that the takeover was wrong. 

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The defense proffers that Doug Cox arrived in Burns for the Hammond March on January

1, 2016. Mr. Cox stayed the night at the home of local Burns residents with Mr. O’Shaughnessy and

many of the men who would later occupy the MNWR. 

Immediately after the Hammond March on January 2nd, a small number of individuals went

up to the refuge. Mr. Cox reports neither he nor Mr. O’Shaughnessy left with the occupiers to take

over the MNWR. Mr. Cox states that Mr. O’Shaughnessy stated repeatedly and unequivocally

during this initial time that he disagreed with the others’ decision to take over the refuge. In addition

to Mr. Cox, another witness named Maureen Peltier also states that she saw Mr. O’Shaughnessy at

the fairgrounds after the march and after the occupiers had left for the refuge. 

Later on the evening of January 2 , a group of individuals staying at The Silver Spur Motel nd 1

left the motel to drive up to the gate of the MNWR to see if rumors of a road block were true. 

According to both Doug Cox and Maureen Peltier, Mr. O’Shaughnessy refused to even travel with

the group up to the front gates of MNWR on January 2 , let alone cross over and join the occupiers. nd

Mr. O’Shaughnessy’s refusal to join the occupiers was not without consequences. Mr. Cox

reported that he overheard Mr. O’Shaughnessy on the telephone at the Silver Spur as occupiers

angrily chastised him as a traitor for his refusal to participate in the occupation. The occupiers

unsuccessfully tried to convince Mr. O’Shaughnessy over the phone to change his mind and join

them. Mr. O’Shaughnessy stood his ground and told the occupiers that they were the ones in the

wrong.

Similarly, Ms. Peltierreported that when she visited the front gate to the MNWR on the night

of January 2 , some of the occupiers told her that they were furious with Mr. O’Shaughnessy for nd

The Defense has Motel receipts as well as the proffered testimony of the owner of the motel 1

to establish Mr. O’Shaughnessy stayed at The Silver Spur for much of the month of January. 

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refusing to join them. Ms. Peltier said the occupiers referred to O’Shaughnessy as a “traitor” who

had “betrayed them” by refusing to join them in the occupation. 

Despite his disagreement with the occupiers, Mr. O’Shaughnessy remained in the area for

almost a month after the occupation began. This is because while Mr. O’Shaughnessy disagreed

with the takeover, he hoped to act as a neutral witness to the federal authorities’ response to the

takeover. He set up a medical tent with others who were opposed to the takeover, but who wanted

to make sure that death or injury did not come to anyone during the course of the occupation. 

The defense will proffer the testimony of two men who traveled from Nevada to Oregon for

such a role. Gary Underhill and Daniel Malavenda went with Mr. O’Shaughnessy on an almost

daily basis up to the refuge to try to convince the occupiers to open communications with law

enforcement and to de-escalate the situation. Both Mr. Underhill and Mr. Malavenda, both former

law enforcement officers themselves, state that they were personally present for the brief, but almost

daily meetings between themselves, Mr. O’Shaughnessy and the occupiers. They state that Mr.

O’Shaughnessy stated consistently, and unequivocally, that the occupation was wrong and

encouraged the occupiers to work with law enforcement to end it. 

The defense proffered Mr. Underhill’s information at the initial detention hearing, but Mr.

Malavenda’s corroborating information is new and in addition to that which the Magistrate Judge

found compelling at the previous hearing. The nature and circumstances of the offense fail to carry

much weight when the evidence of innocence is significant. In sum, Strike Three. 

4. Social Media And News Reports, Pages 11-31

In the complaint, the government lists numerous online postings by multiple occupiers as

proof of the occupiers’ intent. Of these twenty pages of allegations, only one paragraph – Paragraph

30 – pertains to Mr. O’Shaughnessy. The video referred to in this paragraph was recorded outside

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the refuge on January 5 or 6, 2015. In the video Mr. O’Shaughnessy is talking about the occupiers 2

inside the refuge. He states that people may disagree with the occupiers’ tactics, but that people

should still support their message. He asks others to join him in the “buffer zone” outside the fence

and protest peacefully. While it is true that the recording refers to a security force, this statement

is made in the context of preventing violence, not escalating it. And while it is also true that Mr.

O’Shaughnessy refers to people deciding for themselves if they want to go into the refuge or stay

in the buffer zone, this statement is made by a non-co-conspirator, outside the refuge. Most

importantly as to the question of release, Mr. O’Shaughnessy does not advocate violence. In the

context of the clearly established record that Mr. O’Shaughnessy disagreed with the occupiers about

the takeover from the very start, the video hardly makes for a slam-dunk case. Strike Four. 

The History And Characteristics Of The Person

Pretrial Services conducted an investigation of Mr. O’Shaughnessy and concluded he was

a suitable candidate for release. As set forth in the report, Joseph O’Shaughnessy is a 43 year-old

former firefighter and emergency medical technician (EMT) who worked for eleven years for the

in Glen Ellyn, Illinois. He is healthy and has no history of mental illness.

He resides with his mother in Cottonwood, Arizona, in a fully-owned home located on a

fully-owned a parcel of land. Mr. O’Shaughnessy works various contract jobs to provide income. 

Mr. O’Shaughnessy’s mother confirms that her son is welcome to return home and live with her on

her “mini-farm” pending outcome of this case. 

In the affidavit supporting the complaint, the affiant states that the video was filmed either 2

on the MNWR or outside of it, but the next sentence states that a Fish and Wildlife Officer confirms

the video was recorded outside the refuge. Complaint at 14, paragraph 30. Nevertheless, the

government again claims in its Memorandum in Support of Pretrial Detention that the video was

taken “on the MNWR.” Page 6. This is untrue. The video was recorded outside the refuge. 

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Mr. O’Shaughnessy has extremely limited criminal history. He has a misdemeanor

conviction from June 2007 for having a “dog at large” without a collar. He has a second

misdemeanor, a failure to appear on a citation for driving offense from January of 2008. Other than

these two misdemeanors dating back over eight years, he has no prior convictions. 

In sum, Mr. O’Shaughnessy’s personal history and characteristics weigh toward release. 

The Risk Of Danger To Any Person Or The Community

Mr. O’Shaughnessy is no danger. In any other case charging a Class D Felony to a 43 yearold former firefighter/EMT, with a stable place to live, no history of violence, no mental illness, no

felony record, and a minimal record of two misdemeanors from eight years in the past, the

government would concede the defendant is not a danger. In its Detention Memorandum, the

government refers to the fact that Mr. O’Shaughnessy was in a vehicle with guns when he was

arrested. That is true. Mr. O’Shaughnessy was in a vehicle with retired police officer Underhill 3

and former police officer Malavenda. All three men were exercising their constitutionally protected

rights to bear arms. Like its reliance on making a video to encourage people to attend a parade, or

its reliance on participating in the parade itself, the government has again argued constitutionally

protected conduct as a basis for pretrial detention. The Court should reject these arguments; Mr.

O’Shaughnessy is not a danger.

CONCLUSION

The charge and the circumstances surrounding the charge are what arguably make this case

different from release decisions in other Class D Felony cases. However, as established in this

Response, Joseph O’Shaughnessy had no agreement with co-conspirators to take over the MNWR.

It is also true that Mr. O’Shaughnessy cooperated fully with officers and was arrested 3

without incident. 

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He had a disagreement with the occupiers about decision to take over the MNWR. This is a

distinction that makes every difference in a charge of conspiracy. 

Based on this Response and additional information to be presented at the hearing, the defense

respectfully requests that the Court find that the government has failed to meet its burdens of proof

as to either risk of appearance or danger to the community and deny the government’s Motion to

Revoke the Magistrate Judge’s Release Order. We ask that the Court order Mr. O’Shaughnessy

released from custody. 

Respectfully submitted on February 2, 2016.

/s/ Amy Baggio

Amy Baggio, OSB #011920

503-222-9830

Attorney for Defendant O’Shaughnessy

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