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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

PORTLAND DIVISION 

UNITED STATES OF AMERICA, )

 ) 

 Plaintiff, ) Case No. 3:16-cr-00051-BR 

 ) 

 v. ) 

 ) December 21, 2017 

JOSEPH O'SHAUGHNESSY (3) and )

RYAN PAYNE (4), )

 ) 

 Defendants. ) Portland, Oregon 

________________________________) 

TELEPHONIC STATUS CONFERENCE 

TRANSCRIPT OF PROCEEDINGS 

BEFORE THE HONORABLE ANNA J. BROWN 

UNITED STATES DISTRICT COURT SENIOR JUDGE 

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Case 3:16-cr-00051-BR Document 2611 Filed 04/20/18 Page 1 of 14
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APPEARANCES 

FOR THE PLAINTIFF: 

 ETHAN D. KNIGHT 

 U.S. Attorney's Office 

 1000 SW Third Avenue 

 Suite 600 

 Portland, OR 97204 

FOR THE PLAINTIFF: 

 CRAIG J. GABRIEL 

 U.S. Attorney's Office 

 1000 SW Third Avenue 

 Suite 600 

 Portland, OR 97204 

FOR THE PLAINTIFF: 

 GEOFFREY A. BARROW 

 U.S. Attorney's Office 

 1000 SW Third Avenue 

 Suite 600 

 Portland, OR 97204 

FOR DEFENDANT JOSEPH O'SHAUGHNESSY: 

 ANTHONY C. SCHWARTZ 

 The Schwartz Law Firm 

 520 SW 6th Avenue 

 Suite 600 

 Portland, OR 97204 

FOR DEFENDANT RYAN PAYNE: 

 LISA HAY 

 Office of the Federal Public Defender 

 101 SW Main Street 

 Suite 1700 

 Portland, OR 97204 

COURT REPORTER: Jill L. Jessup, CSR, RMR, RDR, CRR, CRC 

 United States District Courthouse 

 1000 SW Third Avenue, Room 301 

 Portland, OR 97204 

 (503)326-8191 

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Case 3:16-cr-00051-BR Document 2611 Filed 04/20/18 Page 2 of 14
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Case 3:16-cr-00051-BR Document 2611 Filed 04/20/18 Page 3 of 14
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TRANSCRIPT OF PROCEEDINGS 

(December 21, 2017) 

(Telephone conference:) 

THE COURT: Good morning, Counsel. This is

Judge Brown. We're on the record in the United States v.

Ammon Bundy, which is Criminal No. 16-00051, to touch base

regarding developments in the proceedings in Las Vegas that

affect the release status of Defendant Ryan Payne and Defendant

Joseph O'Shaughnessy. I wanted to touch base with you so that

this Court's position regarding continued release is clear, and

as issues develop in Nevada, you and your clients are prepared

to address this Court's expectations regarding the continued

release of both Mr. Ryan and Mr. O'Shaughnessy. It being, of

course, unpredictable what will happen there next.

Mr. Ryan Payne was in the marshal's custody at the time

Chief Judge Navarro authorized his release as things were

developing in that trial that seemed to warrant it. I haven't

been privy to the reasons she made her choice except to the

extent some of them have been reflected publicly in media

coverage.

I, however, have been mindful of Mr. Payne's ongoing

objections about simultaneous prosecution. And with the

awareness that the co-defendants with whom he was in trial,

excepting, of course, Cliven Bundy, would be out of custody and

that Chief Judge Navarro had approved his release on conditions

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Case 3:16-cr-00051-BR Document 2611 Filed 04/20/18 Page 4 of 14
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during that trial, I thought it prudent to authorize his

release from the Oregon detention hold while that trial was in

progress.

That, of course, changed yesterday when Judge Navarro

entered an order declaring a mistrial. That trial is no longer

in progress.

It's also unclear, however, what the future holds with

respect to potential ongoing trial proceedings involving

Mr. Payne. As I understand it from the media and from

Ms. Hay's correspondence by email last night, the defendants

take the position that the mistrial declared should be one that

precludes any further prosecution of them. A mistrial with

prejudice, so to speak. And the government opposes that.

The Court, as I understand it, in Nevada, has set a

briefing schedule for the parties there, and I think -- and,

Ms. Hay, correct me if I'm wrong -- I think a hearing date of

January 8 or thereabouts on that issue; is that right?

MS. HAY: That's correct, Your Honor. The briefs are

due by the end of December, and the hearing is Monday January 8

at 9:00 a.m.

THE COURT: All right. So I'm satisfied with

confirmation that Mr. Payne has remained in compliance with the

conditions of release, and this is true, as well, for

Mr. O'Shaughnessy. His counsel contacted us this morning with

email confirmation that he's also in compliance with the

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Case 3:16-cr-00051-BR Document 2611 Filed 04/20/18 Page 5 of 14
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conditions of his release. I think that status needs to

continue at least until January 8th.

I'm, however, of the firm conviction that in the event

Judge Navarro declares a mistrial with prejudice as of January

8, then Mr. Payne needs to be returned to the status he was in

when he left Oregon; that is to say in the marshal's custody

pending sentencing. I would intend to enter an order requiring

him to surrender back to the marshal in Nevada within 48 hours

of declaration of a mistrial with prejudice or a longer period

of time, 96 hours, maybe, for a surrender in Oregon.

I'm of a mind that he needs to come back into custody and

we need to move forward promptly to get his sentencing

materials updated and current and get that decision made.

So with respect to Mr. Payne, Ms. Hay, I would like you to

tell him that I'm satisfied he should stay out of custody, that

my whole purpose of allowing him out of custody on the Oregon

conviction pending his sentencing was to ensure he could

adequately prepare for that trial. But when that need is over,

I'm still of a mind he needs to come back into custody.

So I want him to clearly comply with the conditions of

release, and I want him to be standing by for directions that

are updated. When and if the mistrial is declared to be with

prejudice, I would be entering an order with specifics for his

surrender. I don't want any miscommunication. I don't want

him out of contact with you, and I want to be sure this

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Case 3:16-cr-00051-BR Document 2611 Filed 04/20/18 Page 6 of 14
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proceeds smoothly so that we don't have any issues about

getting the matter back in front of the Court for sentencing as

soon as everyone can be ready.

Now, if Judge Navarro determines the mistrial is without

prejudice, I understand she intends to proceed to trial in

February or thereabouts. And if that's the case, unless

something changes either in the course of Mr. Payne's behavior

or the government's position there and the Court's position

there regarding his release, then the idea would be he would

stay out of custody pending the conclusion of that trial --

that is to say a verdict, not a sentencing -- because I'm not

going to wait here to sentence him for all of the time and

preparation it will take after any guilty verdict there to --

to determine a sentencing posture out of that proceeding. 

So from -- from my position, the prudent thing to do is to

leave Mr. Payne where he is, out of custody, compliant with

conditions of release, and focusing on what is next in the

District of Nevada.

If he's going to have to prepare for a new trial, then

he's going to be permitted to stay out of custody, with the

same conditions, until something changes that warrants a change

in that. But in the event and when that need to prepare for

that trial is over, he's going to have to get back into

custody, and we need to move forward here to get his sentencing

resolved.

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Case 3:16-cr-00051-BR Document 2611 Filed 04/20/18 Page 7 of 14
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Now, with respect to Mr. O'Shaughnessy, he was not in

Oregon custody when the Nevada court released him, and so he's

in a bit of a different position, and I would want to have an

evaluation of what the conditions were with respect to

continued release once the -- once the trial proceedings

against him are concluded.

I understand from media coverage yesterday that Ryan Bundy

raised to Judge Navarro that the status of those already

convicted in the Nevada case, in fairness, needs to be

reviewed, and her response, as quoted in the media, is, "Well

that's a totally separate issue." 

I think an analogous point has to be anticipated with

respect to Mr. O'Shaughnessy, and that is if a mistrial is

declared with prejudice, then I don't know what the

government's position will be as to proceeding to trial as to

Mr. O'Shaughnessy or what the Court's position will be, but

we'll need to do a -- we'll need to be in a position to do a

quick evaluation about when sentencing will be scheduled to go

forward for certain on his matter. We've -- we simply have to

get the proceedings concluded here at this end.

So I wanted to be -- we are on the record. I should let

you know that. I want to be clear that I'm not changing

anything today, but I will be attentive to what Judge Navarro

does on January 8th. And then we're going to need to have a

quick opportunity to have probably a telephone hearing, then,

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Case 3:16-cr-00051-BR Document 2611 Filed 04/20/18 Page 8 of 14
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to confirm what the correct course of action is.

I'm letting you know what I'm thinking strongly now will

need to be the case if it's declared to be a mistrial with

prejudice.

But if you want, I can also set a hearing now for, say,

January 9, the day after Judge Navarro hears that issue of with

or without prejudice, and we can visit -- revisit these issues

formally. I can take any argument you want to make, but I just

thought it was important that you have clarification for what

to do now, going forward, waiting until January 8th, and over

the holidays, that your clients understand how important it is

they remain in strict compliance with conditions between now

and then and what to expect going forward.

Now, who do I have from the U.S. Attorney's Office on the

phone this morning?

MR. KNIGHT: Your Honor, Ethan Knight. Geoff Barrow

and Craig Gabriel are present as well.

THE COURT: Do you have any objection to my

proceeding as described?

MR. KNIGHT: No, Your Honor. We're available on the

9th of January, as well, for a follow-up hearing.

THE COURT: Ms. Hay, I know you would like to address

the merits of keeping Mr. Payne out of custody pending his

Oregon sentencing. I am not interested in hearing those issues

today. I simply wanted to get the message out to him, through

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Case 3:16-cr-00051-BR Document 2611 Filed 04/20/18 Page 9 of 14
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you, what my view is now. But we probably should set a

hearing -- a backup hearing date for, say, January 9.

Are you available that day?

MS. HAY: I am. 11:00 would be better for me, if

we're -- 11:00 or later, but --

THE COURT: That works.

MS. HAY: If it's earlier, I can work out something.

THE COURT: That works. We can set a status hearing

in United States v. Payne by telephone for Tuesday, January 9,

at 11:00.

Now, with respect to Mr. O'Shaughnessy, it's probably best

that we also have his interests on the docket for that same

time.

Are you available, too, counsel for Mr. O'Shaughnessy, on

the 9th at 11:00 to participate in another telephone hearing?

MR. SCHWARTZ: This is Tony Schwartz for

Mr. O'Shaughnessy. Yes, Your Honor, I am.

THE COURT: Okay. So what I would like, then,

Ms. Hay and Mr. Schwartz, is for you each to let your clients

know that nothing is going to change as far as the Oregon

status of release goes between now and January 9th, that the --

they simply need to take seriously the conditions of release.

I have this fear that the jubilation that is being

reported in the media among the defendants there may lead to

some improvident decision-making, and that is not in

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Case 3:16-cr-00051-BR Document 2611 Filed 04/20/18 Page 10 of 14
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Mr. Payne's interest, and it's not in Mr. O'Shaughnessy's

interests. So they need to know we're being patient here, but

at some point we are going to move forward, and their conduct

there may, in fact, impact what happens at their sentencing

hearing here.

So we'll go ahead, then, and set another telephone hearing

for Tuesday, January 9, a status hearing we'll call it, on the

release status of both these defendants. If, by chance,

Judge Navarro does not make a decision on the 8th, we'll move

the hearing on the 9th; but we'll go ahead with the hearing on

the 9th, I guess, at least for the purpose of rescheduling so

we don't need to chase everybody down again to find out when

you're available.

It would be good if you could have your clients available

by phone, too, to participate at that hearing on the 9th.

Ms. Hay, would that work?

MS. HAY: As far as I know, I could do that. I guess

it would certainly depend on what's happening in the court in

Nevada, but if he's out of -- if he's not required to be in the

courtroom for any reason, then I would be able to have him

available.

THE COURT: True enough.

Okay. Same with you, Mr. Schwartz?

MR. SCHWARTZ: It is the same, Your Honor.

THE COURT: All right. Ms. Hay, do you need to say

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Case 3:16-cr-00051-BR Document 2611 Filed 04/20/18 Page 11 of 14
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anything for the record this morning?

MS. HAY: No. Thank you, Your Honor.

THE COURT: Okay. Mr. Schwartz?

MR. SCHWARTZ: Not -- just -- just regarding some

notice to you and not -- first of all, thank you for the

Court's clarification in expectations. I will relay that to

Mr. O'Shaughnessy right when I get off the phone with you. But

Mr. O'Shaughnessy and I have had several conversations since

his release two or three weeks ago about a sentencing date here

before you, obviously, in the next maybe 8 to 10, 12 weeks.

If -- if there are issues regarding setting that up, you know,

before January 8th or 9th, before Judge Navarro's ruling; but,

that said, I'll reach out to the U.S. attorneys and try to talk

to them about some of the issues, which is to say we may be

coming before you in the next couple of weeks regarding a date

certain for sentencing. So I just wanted to give you that

information.

THE COURT: Well, we're going to get a date certain

for sentencing. Why don't we just postpone that discussion

until January 9th, since we're all going to be on the phone

regarding status anyway.

MR. SCHWARTZ: Okay.

THE COURT: Does that work for the government?

MR. KNIGHT: Yes, Your Honor.

THE COURT: Okay. Well, I think that's all we can

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Case 3:16-cr-00051-BR Document 2611 Filed 04/20/18 Page 12 of 14
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accomplish for today.

Thank you, Counsel. We're off the record.

(Hearing concluded.) 

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Case 3:16-cr-00051-BR Document 2611 Filed 04/20/18 Page 13 of 14
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C E R T I F I C A T E 

United States of America v. Joseph O'Shaughnessy and Ryan Payne 

3:16-cr-00051-BR 

STATUS CONFERENCE 

December 21, 2017 

I certify, by signing below, that the foregoing is a 

true and correct transcript of the record, taken by 

stenographic means, of the proceedings in the above-entitled 

cause. A transcript without an original signature, conformed 

signature, or digitally signed signature is not certified. 

/s/Jill L. Jessup, CSR, RMR, RDR, CRR, CRC 

_____________________________________________ 

Official Court Reporter Signature Date: 4/20/18 

Oregon CSR No. 98-0346 CSR Expiration Date: 9/30/20 

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Case 3:16-cr-00051-BR Document 2611 Filed 04/20/18 Page 14 of 14