IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

UNITED STATES OF AMERICA, )

) Case No. 3:16-CR-0051-BR 

 Plaintiff, ) 

) 

v. ) June 15, 2016 

) 

AMMON BUNDY (1), ) 

JON RITZHEIMER (2), ) 

JOSEPH O'SHAUGHNESSY (3), ) 

RYAN PAYNE (4), ) 

RYAN BUNDY (5), ) 

BRIAN CAVALIER (6), ) 

SHAWNA COX (7), ) 

PETER SANTILLI (8), ) 

JASON PATRICK (9), ) 

DUANE LEO EHMER (10), ) 

DYLAN ANDERSON (11), ) 

SEAN ANDERSON (12), ) 

DAVID LEE FRY (13), ) 

JEFF WAYNE BANTA (14), ) 

SANDRA LYNN ANDERSON (15), ) 

KENNETH MEDENBACH (16), ) 

BLAINE COOPER (17), ) 

WESLEY KJAR (18), ) 

NEIL WAMPLER (20), ) 

DARRYL WILLIAM THORN (22), ) 

TRAVIS COX (24), ) 

JAKE RYAN (26), ) 

) 

 Defendants. ) 

__________________________________) Portland, Oregon 

TRANSCRIPT OF PROCEEDINGS

(Status Conference and Oral Argument) 

BEFORE THE HONORABLE ANNA J. BROWN, DISTRICT JUDGE 

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COURT REPORTER: AMANDA M. LeGORE 

 CSR, RDR, FCRR, CRR, CE 

 U.S. Courthouse 

 1000 SW Third Avenue Suite 301 

 Portland, OR 97204 

 (503)326-8184 

APPEARANCES: 

FOR THE PLAINTIFF: GEOFFREY BARROW 

 ETHAN KNIGHT 

 CRAIG GABRIEL 

 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 

JON RITZHEIMER: TERRI WOOD 

 Law Office of Terri Wood 

 730 Van Buren Street 

 Eugene, OR 97402 

 (541)484-4171 

FOR DEFENDANT JOSEPH 

O'SHAUGHNESSY: AMY BAGGIO 

 Baggio Law 

 621 SW Morrison, Suite 1025 

 Portland, OR 97205 

 (503)222-9830 

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APPEARANCES: (continuing) 

FOR DEFENDANT RYAN 

PAYNE: RICHARD FEDERICO 

 Assistant Federal Defender

 101 SW Main Street, Suite 1700 

 Portland, OR 97204 

 (503)326-2123 

 

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 

FOR DEFENDANT BRIAN 

CAVALIER: TODD BOFFERDING 

 Bofferding Law Office, PC 

 1215 B Street 

 PO Box 539 

 Hood River, OR 97031 

 (541)490-9012 

FOR DEFENDANT SHAWNA 

COX: TIFFANY HARRIS 

(defendant present 121 SW Salmon Street, Suite 1420 

telephonically) Portland, OR 97204 

 (503)546-2927 

FOR DEFENDANT PETER 

SANTILLI: AMY BAGGIO 

 621 SW Morrison, Suite 1025 

 Portland, OR 97205 

 (503)222-9830 

 

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Case 3:16-cr-00051-BR Document 785 Filed 06/27/16 Page 3 of 103
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APPEARANCES: (continuing) 

FOR DEFENDANT JASON 

PATRICK: JASON PATRICK 

 Pro Se 

 79454-065 

 

 ANDREW KOHLMETZ 

 Standby Counsel 

 Raivio, Kohlmetz & Steen, PC 

 741 SW Lincoln Street 

 Portland, OR 97201 

 (503)224-1104 

FOR DEFENDANT DUANE 

EHMER: MICHELE KOHLER 

 Michele Kohler, PC 

 4380 SW Macadam Ave, Suite 500 

 Portland, OR 97239 

 (503) 219-9300 

FOR DEFENDANT DYLAN 

ANDERSON: SAMUEL KAUFFMAN 

(not present) Kauffman Kilberg, LLC 

 1001 SW 5th Avenue, Suite 1414 

 Portland, OR 97204 

 (503)224-2595 

FOR DEFENDANT SEAN 

ANDERSON: MATTHEW McHENRY 

(not present) Levine & McHenry, LLC 

 1001 SW Fifth Avenue, Suite 1414 

 Portland, OR 97204 

 (503)546-3927 

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 

(not present) 330 South 1st Street 

 PO Box 1272 

 St. Helens, OR 97051 

 (503)397-9000 

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Case 3:16-cr-00051-BR Document 785 Filed 06/27/16 Page 4 of 103
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APPEARANCES: (continuing) 

FOR DEFENDANT SANDRA 

ANDERSON: TYL BAKKER 

(not present) Tyl W. Bakker, LLC 

 621 SW Alder Street, Suite 621 

 Portland, OR 97205 

 (503)721-0140 

FOR DEFENDANT KENNETH 

MEDENBACH: KENNETH MEDENBACH 

 Pro Se 

 25795-086 

 ROBERT SALISBURY 

 (Appearing as standby counsel in place 

 of Matthew Schindler) 

 330 South 1st Street 

 PO Box 1272 

 St. Helens, OR 97051 

 (503)397-9000 

FOR DEFENDANT BLAINE 

COOPER: KRISTA SHIPSEY 

 820 SW 2nd Avenue, Suite 275 

 Portland, OR 97204 

 (503)309-9024 

FOR DEFENDANT WESLEY 

KJAR: JAMES HALLEY 

(not present) 735 SW First Avenue, 2nd Floor 

 Portland, OR 97204 

 (503)295-0301 

FOR DEFENDANT NEIL 

WAMPLER: TIFFANY HARRIS 

(not present) (Appearing as standby counsel in place 

 of Ms. Lisa Maxfield) 

 811 SW Naito Parkway, Suite 500 

 Portland, OR 97204 

 (971)634-1818 

FOR DEFENDANT DARRYL 

THORN: LAURIE SHERTZ 

 Laurie Shertz, LLC 

 121 SW Salmon Street, 11th Floor 

 Portland, OR 97204 

 (503)406-2136 

 

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Case 3:16-cr-00051-BR Document 785 Filed 06/27/16 Page 5 of 103
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APPEARANCES: (continuing) 

FOR DEFENDANT TRAVIS 

COX: PAUL HOOD 

(not present) Paul Hood, Attorney at Law, LLC 

 1001 SW 5th Avenue, Suite 1415 

 Portland, OR 97204 

 (541)513-7545 

FOR DEFENDANT JAKE 

RYAN: JESSE MERRITHEW 

(not present) Levi Merrithew Horst, LLP 

 610 SW Alder Street, Suite 415 

 Portland, OR 97205 

 (971)229-1241 

ALSO PRESENT: JON HUNT 

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Case 3:16-cr-00051-BR Document 785 Filed 06/27/16 Page 6 of 103
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(Wednesday, June 15, 2016; 9:30 a.m.) 

P R O C E E D I N G S 

THE COURT: Good morning, everyone. Please be

seated, everyone.

Mr. Knight.

MR. KNIGHT: Morning, your Honor. We're present

today in the matter of the United States versus Ammon Bundy, et

al. This is Case No. 16-CR-00051.

Ethan Knight, Geoff Barrow, and Craig Gabriel

appearing on behalf of the United States.

Defendants with counsel and with waivers noted are as

follows, your Honor.

Defendant Ammon Bundy is present with counsel Morgan

Philpot and Marcus Mumford.

THE COURT: Gentlemen, welcome.

MR. MUMFORD: Thank you.

THE COURT: Good morning. 

MR. KNIGHT: Defendant Jon Ritzheimer is present in

the courtroom with counsel Terri Wood.

THE COURT: Good morning.

MR. KNIGHT: Defendant Joseph O'Shaughnessy is

present in the courtroom with counsel Amy Baggio.

Defendant Ryan Payne is present in the courtroom with

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Case 3:16-cr-00051-BR Document 785 Filed 06/27/16 Page 7 of 103
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counsel Rich Federico.

Defendant Ryan Bundy, appearing on his own behalf, is

present in the courtroom with standby counsel Lisa Ludwig.

THE COURT: Good morning.

DEFENDANT RYAN BUNDY: Good morning.

MR. KNIGHT: Defendant Ryan Cavalier is present in

the courtroom with counsel Todd Bofferding.

Defendant Shawna Cox is present by telephone.

Appearing on her behalf today, Tiffany Harris.

THE COURT: Has she actually connected at this point?

MS. HARRIS: I don't think --

DEFENDANT SEAN ANDERSON: Good morning.

THE COURT: Oh, she's there. All right, Ms. Cox.

Good morning. 

And, Ms. Harris, good morning.

MS. HARRIS: Good morning.

MR. KNIGHT: Defendant Peter Santilli is present in

the courtroom. Appearing on his behalf today, counsel Amy

Baggio.

THE COURT: Good morning.

DEFENDANT SANTILLI: Good morning.

MR. KNIGHT: Defendant Jason Patrick is present in

the courtroom, appearing on his own behalf, with standby

counsel Andrew Kohlmetz.

MR. KOHLMETZ: Good morning, your Honor.

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Case 3:16-cr-00051-BR Document 785 Filed 06/27/16 Page 8 of 103
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THE COURT: Good morning.

MR. KNIGHT: Defendant Duane Ehmer, present in the

courtroom with counsel Michele Kohler.

THE COURT: Good morning.

MS. KOHLER: Good morning, your Honor.

THE COURT: Welcome, Ms. Kohler.

MR. KNIGHT: Defendant Dylan Anderson has waived his

personal appearance. Appearing on his behalf today is counsel

Samuel Kauffman.

MR. KAUFFMAN: Good morning, your Honor.

MR. KNIGHT: Defendant Sean Anderson has waived his

personal appearance. Counsel Matthew McHenry, I believe, is

present. Yes.

THE COURT: He is indeed. Good morning.

MR. McHENRY: Good morning.

MR. KNIGHT: Defendant David Fry is present in the

courtroom with counsel Per Olson.

MR. OLSON: Good morning, your Honor.

THE COURT: Good morning.

MR. KNIGHT: Defendant Jeff Banta has waived his

personal appearance. Appearing on his behalf today, your

Honor, is counsel Robert Salisbury.

MR. SALISBURY: Good morning, your Honor.

MR. KNIGHT: Defendant Sandra Anderson has waived her

personal appearance. Appearing on her behalf today, counsel

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Case 3:16-cr-00051-BR Document 785 Filed 06/27/16 Page 9 of 103
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Tyl Bakker.

MR. BAKKER: Your Honor.

THE COURT: Good morning.

MR. KNIGHT: Defendant Kenneth Medenbach appearing on

his own behalf, is present in the courtroom today.

DEFENDANT MEDENBACH: Good morning, your Honor.

MR. KNIGHT: Standby counsel Matthew Schindler is not

present. And appearing with Mr. Medenbach today, in a standby

capacity, is Mr. Salisbury.

DEFENDANT MEDENBACH: Sometime during the hearing

today I would like to make some comments.

THE COURT: Can you tell me what it's about, so I

know where to put it.

DEFENDANT MEDENBACH: In regards to a motion to

dismiss.

THE COURT: One already filed or yet another one?

DEFENDANT MEDENBACH: Another one.

THE COURT: All right. We'll put it on the list,

Mr. Medenbach.

DEFENDANT MEDENBACH: Thank you.

THE COURT: Go ahead and take a seat.

MR. KNIGHT: Defendant Blaine Cooper is present in

the courtroom with counsel Krista Shipsey.

THE COURT: Good morning.

MR. KNIGHT: Defendant Wesley Kjar has waived his

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Case 3:16-cr-00051-BR Document 785 Filed 06/27/16 Page 10 of 103
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personal appearance. Appearing on his behalf today, counsel

James Halley.

MR. HALLEY: Good morning, your Honor.

THE COURT: Good morning.

MR. KNIGHT: Defendant Neil Wampler has waived his

personal appearance. Appearing on his behalf today is counsel

tiffany Harris.

MS. HARRIS: (Nods head.)

MR. KNIGHT: Defendant Jason Blomgren has waived his

personal appearance. And counsel of record, Mr. Rainwater, has

also indicated to the Court he's waived his appearance as well.

THE COURT: They've been excused from today.

MR. KNIGHT: Defendant Darryl Thorn is present in the

courtroom. Counsel Laurie Shertz is not present. Appearing,

perhaps, on Mr. Thorn's behalf today, Mr. Hood.

THE COURT: Mr. Thorn is scheduled for a proceeding

this afternoon and was actually excused. He's welcome to stay,

but he doesn't have to be here, and his counsel is also

excused. Thank you.

MR. KNIGHT: Defendant Travis Cox has waived his

personal appearance. Appearing on his behalf today is counsel

Paul Hood.

MR. HOOD: Good morning, your Honor.

THE COURT: Good morning.

MR. KNIGHT: And defendant Jake Ryan has waived his

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Case 3:16-cr-00051-BR Document 785 Filed 06/27/16 Page 11 of 103
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personal appearance today. Appearing on his behalf, counsel

Jesse Merrithew.

MR. MERRITHEW: Good morning.

THE COURT: All right. Ms. Shipsey?

(Defendant Cooper exiting courtroom.)

MS. SHIPSEY: Your Honor, he's going to need to waive

his appearance for medical reasons right now.

THE COURT: Does he want to waive?

MS. SHIPSEY: He does, your Honor.

THE COURT: All right. Then he may.

All right. Mr. Thorn, you're free to go at any point

that you want to go. All right?

DEFENDANT THORN: Thank you, your Honor.

THE COURT: So let's proceed with the agenda.

Just a reminder for counsel who represent parties who

wish to waive personal appearances for these hearings, those

appearance waivers need to be signed personally by the client,

just to ensure there is a deliberate decision for each of those

waiver decisions.

I wanted to update you briefly on the jury summons

process.

The summonses and "dear prospective juror" letters

you helped me work on all went out. I did not add to the

letter the proposed additional language that expanded on a

juror's duty to serve. I simply left the letter in the form

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Case 3:16-cr-00051-BR Document 785 Filed 06/27/16 Page 12 of 103
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that you saw it last.

We've had numerous responses. Many requests for

hardship deferrals or excuses the Court and the jury supervisor

are going through now. But I can tell you we have several

hundred jurors who have responded and not sought a hardship

excuse based on time or based on other issues. So we do have a

good response underway.

Once we identify the pool of jurors who have not been

excused or deferred because of these hardships, then as we

previously discussed, those jurors will be sent a jury

questionnaire.

One of the things you're supposed to be submitting

today are the jointly proposed questionnaire documents, and I

want to be sure you're on track to do that.

Who can speak to me about that?

Mr. Knight?

MR. KNIGHT: We are, your Honor. The parties have

conferred, and we expect those will be filed, I believe, at the

end of the day.

MR. FEDERICO: Yes, your Honor. Ms. Baggio and

Mr. Knight and I met yesterday. And I agree with the statement

that they'll be filed today.

THE COURT: All right. So my intention is to take

your input, add to it potentially, delete from it potentially,

send it back to you for one more opportunity for input before I

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Case 3:16-cr-00051-BR Document 785 Filed 06/27/16 Page 13 of 103
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finalize the questionnaire.

Once finalized, then it will go to that pool of

jurors who have not been excused for hardship. I should say,

many of the jurors were also exempt. Some no longer lived in

Oregon. Some are beyond the statutory age, and so forth. So

we're reducing the pool based on those matters.

And, again, if -- I'm optimistic that there will be a

wide pool available to complete the questionnaires, which, of

course, will generate more bases, I'm sure, for potential

excuse.

Ms. Baggio.

MS. BAGGIO: Thank you, your Honor.

Regarding process -- and I believe that this is a

joint request -- the Court had directed the parties to file the

proposed questionnaire in the public record, and I believe we

would ask if the Court would allow us to provide that to the

Court by letter, so that it's not in circulation.

THE COURT: Because it's a draft, as long as it's

submitted in a joint form, as you're -- you have been doing,

that works for me. Eventually there will be some form of

record. I don't know the extent to which it will be public,

but I -- pardon me. (Coughing.) I will need to be making some

orders in the very near future around issues of juror

anonymity, and the like, to the extent that needs to happen.

So for the moment, yes, you may submit your proposed

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questionnaires to the Court by e-mail.

MS. BAGGIO: Thank you.

THE COURT: Counsel.

MR. KOHLMETZ: Your Honor, Andrew Kohlmetz. At

Mr. Patrick's request, last week I filed an ECF -- a joint

funding request in his name for a jury consultant to assist in

the drafting of his juror -- the juror questionnaire,

specifically with regard to addressing the issues of pretrial

publicity. We have not heard back yet --

THE COURT: It has not come to me yet.

MR. KOHLMETZ: Okay. Mr. Patrick would ask leave

simply to supplement the proposed juror questionnaire.

THE COURT: Well, you know what the process is. When

it goes, it goes. If you have an opportunity to input into it,

you will; and if you don't, you don't. There's only so much I

can do.

The questionnaire has to go out by early July in

order for all of the parties going to trial to have meaningful

time for the responses.

MR. KOHLMETZ: Certainly.

THE COURT: A consultant may or may not be helpful

for preparing a questionnaire. A consultant may or may not be

needed for voir dire or in the evaluation of the responses.

But I will -- as soon as the request reaches me, I'll act on

it.

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Case 3:16-cr-00051-BR Document 785 Filed 06/27/16 Page 15 of 103
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You know the process. It has to go through a number

of steps before it comes to me, and as of last night, it hadn't

been there.

MR. KOHLMETZ: Thank you, your Honor.

THE COURT: All right. Very good.

All right. There was also today a -- the deadline

for filing round 2 motions and the jointly proposed jury

instructions.

With respect to the latter, who can speak to me on

your status there?

Ms. Baggio.

MS. BAGGIO: Thank you, your Honor.

The parties have been working to confer on that. The

Government has provide their instructions. We've provided the

Government our instructions. It is in a joint submission.

We're just finalizing that today, and we do expect

that to be filed within the Court's deadline.

THE COURT: Very good.

And with respect to round 2 motions, that term has

been used in a variety contexts, and I see now that the parties

intended that round 2 motion headline to include a variety of

discovery issues, which I'll address specifically. But in

addition to the two motions that were filed yesterday, I need

someone to tell me what motions are coming today, June 15, the

deadline; beyond the two that have been filed.

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Case 3:16-cr-00051-BR Document 785 Filed 06/27/16 Page 16 of 103
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Mr. Olson.

MR. OLSON: Well, your Honor. Not in actual response

to your question, but originally, I was intending to file a

motion to suppress Facebook search warrant material. Because

this is an issue that's cropped up fairly recently for me, I'm

asking for an extension of time to Monday to file that.

Mr. Knight has no objection to that. It won't affect the

current schedule as set.

THE COURT: And is this a motion you're anticipating

client-specific to Mr. Fry? Or with respect to others? Or

what?

MR. OLSON: It's general. It's going to be filed on

behalf of any and all defendants whose Facebook accounts were

seized pursuant to search warrant.

There may be some particularized arguments that

relate to particular defendants, but it's primarily an issue of

overbreadth.

THE COURT: All right. Who else -- before I respond

to that, I need to know what else is coming.

Mr. Federico?

MR. FEDERICO: Your Honor, on behalf of Mr. Payne, I

anticipate filing -- or will be filing two motions to suppress

today.

The first is a motion to suppress Facebook evidence

under a different theory than what Mr. Olson will be filing.

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Case 3:16-cr-00051-BR Document 785 Filed 06/27/16 Page 17 of 103
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This one will challenge the underlying legality on

jurisdictional limits of the warrants, issued both in Nevada

and Oregon.

Your Honor, I believe it will have applicability

beyond Mr. Payne, so I would anticipate it would apply to most

all defendants who would seek to suppress the evidence.

One issue regarding the filing itself is -- my

intention is to file the motion on ECF, and a public filing.

I've discussed it with Mr. Knight.

However, the warrants themselves remain under seal in

the protective order and so -- and particularly the Nevada

warrant has only been provided in discovery to those defendants

also charged in Nevada.

So I the procedure I intend to follow, absent the

Court direction to the contrary, is to file both the exhibits

or the warrants under seal by hand delivery to the Court and

the Government. Again, the defendants have been provided the

Oregon ones in discovery. And those who are charged in Nevada

already have them in the Nevada discovery as well.

THE COURT: All right. So a public filing of the

motion and the memorandum, but the underlying sealed materials

not on the public record?

MR. FEDERICO: Correct, your Honor.

THE COURT: That's fine.

MR. FEDERICO: A second motion to be filed today,

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Case 3:16-cr-00051-BR Document 785 Filed 06/27/16 Page 18 of 103
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your Honor, is, again, a motion to suppress. This one is

regarding e-mail information of Mr. Payne that was seized

pursuant to a warrant.

I frankly don't know whether or not that will have

applicability to other defendants as well. And regarding the

sealing of that exhibit as well, we may need to follow the same

procedure. We're still looking into whether or not some of

those materials are under seal as well.

THE COURT: Can you give me the basic theory behind

this second motion to suppress?

MR. FEDERICO: Yes, your Honor.

It's basically a particularity requirement on the

warrant itself regarding the -- sort of the scope of the e-mail

information that was seized.

THE COURT: And say again, is this specific to

Mr. Payne or to others as well?

MR. FEDERICO: Your Honor, I'm not sure how many it

would apply to. The warrant itself was particular to him.

Whether or not there are other e-mail accounts that have the

same theory to suppress, I'm just not in a position to say.

THE COURT: All right. Ms. Baggio.

MS. BAGGIO: Thank you, your Honor. Excuse me.

With regard to the defendants charged in the Nevada

case, Mr. Olson is writing an overbreadth challenge to the

Oregon Facebook warrant. And he's doing that on behalf of all

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Case 3:16-cr-00051-BR Document 785 Filed 06/27/16 Page 19 of 103
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Oregon defendants whose accounts were seized.

There are the separate Facebook warrants for the

Nevada defendants, but the same issues regarding overbreadth

apply to the Nevada warrants. Therefore, what I am doing is

I'm filing a separate motion suppress but incorporating all of

the arguments raised by Mr. Olson as to the Oregon warrants as

to the Nevada warrants.

THE COURT: And this will be on behalf of those

defendants only who are common to both cases?

MS. BAGGIO: And whose e-mail -- excuse me, Facebook

accounts were seized, that is correct. And, therefore, I would

also ask for permission to file that on Monday, since I'm

relying on Mr. Olson's pleading.

THE COURT: All right. I am collecting requests

right now, not making rulings. Just trying to --

Hold on, sir. Just a moment. 

(Mr. Mumford being seated.)

THE COURT: Go ahead, Ms. Baggio.

MS. BAGGIO: And the other question -- again, sort of

a practical one -- to avoid filing numerous exhibits that 

are -- I think the one Facebook application is about 98 pages

long. That would be relevant to the motion I'm filing as to

Nevada, as would the one that Mr. Federico is filing. Would

the Court allow us to refer to the exhibits filed as to another

motion to suppress, if it's the exact same document?

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THE COURT: Yes.

MS. BAGGIO: Or would the Court like -- okay. Thank

you.

THE COURT: Yes. So long as the record is clear

where the reference is on which the argument is based, so that

we know where to find it.

Mr. Mumford, just a minute. There was one ahead of

you.

MR. KOHLMETZ: Yeah, just briefly. Mr. Patrick's

long-threatened motion for change of venue, that was -- it will

be filed this afternoon as well.

THE COURT: All right. Mr. Mumford.

MR. MUMFORD: Yes, your Honor. Your Honor, thank

you. As we talk about these round 2 motions -- and,

understand, we're -- we're just coming into the case, getting

up to speed. One of the issues that I see that we really face

here is we don't even know if the discovery is complete yet.

I understood that the Government was supposed to have

had certified the completeness of its discovery by May 15th. I

understand that has not been done.

THE COURT: The Government certified substantial

completion by may -- by mid-May. They did do that.

MR. MUMFORD: What does that mean, exactly?

THE COURT: Counsel, you're going to need to talk

with opposing counsel about what they mean by that, and so

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forth. I can't take the time now to bring you up to speed on

that.

What's your point, though, with respect to round 2

motions?

MR. MUMFORD: Well, your Honor, we have not received

discovery. We have not -- we do not know what -- what is there

or is not there.

THE COURT: Have you spoken with the prosecutors yet?

MR. MUMFORD: I don't think we've spoken with the

prosecutors. I've been speaking with our -- our -- our

discovery team here.

THE COURT: All right. So, Mr. Mumford, you need to

meet with the prosecution team. You need to bring yourself up

to speed in terms of what has been disclosed and not. All of

the defendants have been under my order, working together

cooperatively, receiving discovery and the like, and you need

to make that conferral. And if you have an issue after that

conferral, I'm happy to address it.

MR. MUMFORD: Well, I think, your Honor, I can

anticipate that we -- we will.

THE COURT: Mr. Mumford, you need to follow the

Court's direction. There is an overarching order --

MR. MUMFORD: I understand.

THE COURT: -- please listen.

There's an overarching order in effect, and I won't

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be taking up time in court hearings until there's been

affirmative conferral on whatever issue.

Since you haven't even spoken with the prosecutors

yet, you need to do that first. You need to speak with

Ms. Baggio and Mr. Federico, who've been taking a lot of the

lead on the discovery issues. And once -- 

MR. MUMFORD: I --

THE COURT: May I please finish, sir. Sir?

MR. MUMFORD: Well, you're assuming that I haven't.

THE COURT: Sir? 

MR. MUMFORD: You're assuming I haven't.

THE COURT: I asked you and you said you had not.

MR. MUMFORD: I've been conferring with Ms. Baggio.

THE COURT: I asked if you conferred with the

prosecutors.

MR. MUMFORD: Well, I've been conferring -- how about

this? I've been conferring with the prosecutors through

Ms. Baggio and the other defense counsel.

THE COURT: Mr. Mumford -- Mr. Mumford, enough now.

I'm making a ruling.

I'll take up your concern about whatever it is you

want to get to once you meet with the prosecution team, and you

all file a joint report to me as to whatever the issues are.

MR. MUMFORD: I think the issue I'm speaking of is

contemplated in the joint status report that we did confer

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with --

THE COURT: Then define the issue, please, because

you haven't. You told me you didn't know about discovery. You

didn't know about --

MR. MUMFORD: Okay.

THE COURT: And that already has been accomplished.

MR. MUMFORD: I'll get right to it, then.

THE COURT: Yes, please.

MR. MUMFORD: It is -- we anticipate seeking leave of

the Court to extend the entirety of the -- of the -- motion

deadlines that have been brought and raised to this -- this --

this -- at this point here, your Honor. Because how --

having -- having not received -- not received discovery, not

being able to review it, we don't feel like we can be subject

to a round 2 motion -- motion deadline at this time.

THE COURT: All right. Let me hear, first, from

someone on the prosecution team, and then I'll get back to this

point.

Who wants to address this?

Mr. Barrow.

MR. BARROW: Yes, your Honor.

As to discovery, what is the Court's question?

THE COURT: I want you to respond to Mr. Mumford's

point that he and his clients have not received discovery. I

want you to respond to Mr. Mumford's point that there hasn't

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been certification by the Government. And I want you to

respond to and clarify whether there's been any contact by

Mr. Ammon Bundy's new counsel with the prosecution team.

MR. BARROW: Certainly, your Honor.

The prosecution team has reached out to counsel for

Mr. Bundy -- new counsel for Mr. Bundy and has not received any

response. There's been no phone calls and no in-person

meetings. We are available to meet with them today, or

whenever they would like.

Discovery, of course, has been provided to

Mr. Bundy's prior counsel and has been provided as we've

outlined in the various reports to the Court. And on May 16th,

the Government certified in the status reports substantial

compliance with the discovery.

THE COURT: Thank you.

So, Mr. Mumford, to that, do you have anything you

wanted to add?

MR. MUMFORD: I don't -- I don't -- I don't know that

they --

THE COURT: I can't hear you, sir.

MR. MUMFORD: Excuse me.

I don't know that they responded to my -- to the

anticipated -- the anticipated relief that we'll seek. But

I'll -- I'll confer with everyone. I agree with the Court.

THE COURT: So, Mr. Mumford, here's the bottom line.

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You certainly may file a motion to extend the deadline. To do

so, you first must confer with the prosecutors about the issues

that underlie your request.

And once you have, then you will file with the

prosecutor a joint statement on the position of whether the

deadline should be extended or not. That's -- that's what

needs to happen.

So confer with the prosecutors. If you believe you

need to file a motion for leave to late-file these motions to

suppress or other round 2 motions, then explain that in a joint

statement and I'll take it up at that point.

Do you know, yet, whether there are any other

motions -- beyond what you've learned the co-defendants are

filing -- that you already know you'll be filing on behalf of

your client?

MR. MUMFORD: Yes, your Honor. We -- we do

anticipate bringing a motion to consolidate a release hearing

in both Oregon and Nevada matters.

I think it's fair to say that we're observing, in

that respect, the -- the -- the proceedings and the arguments

that Mr. Federico is currently pursuing in front of the Ninth

Circuit on that issue.

As your Honor knows, we do anticipate further

bringing a motion to release Mr. -- to obtain the release of

Mr. -- Mr. Bundy.

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THE COURT: I am not aware of that. This is the

first I've heard of that.

MR. MUMFORD: Well, it's been -- but it was -- it

was -- we were given the leave to -- to bring that at any time,

from earlier orders, as I understand it.

THE COURT: Everyone has been addressing their

individual release issues.

In this instance, any motions for release should be

addressed to Senior District Judge Robert E. Jones. He's been

kind enough to take those hearings, so --

MR. MUMFORD: And it was only because -- your Honor

just asked me, what -- what -- what motions are that I'm -- I'm

bringing them up.

THE COURT: And I thank you for letting me know

that's happening. But just so you know, I want to be clear. A

motion to release, again, is also subject to the conferral

point, and then it should be -- when filed, it will be docketed

by Judge Jones's chambers.

Beyond that, do you have specific motions you're

anticipating?

MR. MUMFORD: Well, there are -- there will be, I --

I assure you that.

THE COURT: Please tell me what they are. Since

today's the deadline, I need to know what to anticipate and

plan for.

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MR. MUMFORD: Well, I think we have a motion to

suppress the -- I understand there was a -- a warrant issued

very early on and leave -- I believe we anticipate bringing a

Franks motion on that issue. The false and material misleading

statements from the Government in obtaining that -- that

warrant to surveil, to conduct the -- I believe it's the -- the

Guardian system, is what it was. A surveillance -- I think

it's the NSA -- as I understand it, something like that,

surveillance of Mr. Bundy. And we believe there's -- we

believe there are grounds to bring a Franks motion on that.

Like I say, I'm conducting discovery, so I would

like -- that's one of the reasons why I anticipate them moving

to put the -- the -- the -- to put the motion schedule -- give

an extension on the motion schedule, so I can bring, as your

Honor knows, a well-founded and -- and detailed motion before

the Court so that -- so that the Court can make a -- an

advised --

THE COURT: Well, just so you know from history,

Mr. Mumford, the motions deadline was set with the input of

Mr. Bundy's then counsel and all -- all lawyers participating.

I need to finish before you try to answer.

MR. MUMFORD: Oh, okay.

THE COURT: The September 7 trial date exists because

there are, like your client, people in custody who have not

waived speedy trial rights. And I'm determined to move forward

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Case 3:16-cr-00051-BR Document 785 Filed 06/27/16 Page 28 of 103
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to that date.

I will entertain any reasonable motion to continue

based on whatever real facts are. But I assume, when you and

your colleague took on Mr. Bundy's representation, you did so

knowing of your client's insistence on his right to speedy

trial and the existing date. So you have to understand the

case is being managed with all those interests in mind.

MR. MUMFORD: (Nods head.) Certainly do. Thank you.

May I ask the Court a -- a question on that? A

little bit of -- a little bit of clarification on that?

THE COURT: Sure.

MR. MUMFORD: It's my understanding that the Court

has declared this matter complex under the -- under the -- as

requested by the Government. And therefore the speedy act --

Speedy Trial Act deadlines do not apply.

Now, your Honor is saying my client hasn't waived his

speedy trial. I'm just trying to understand. Is there a

distinction you're making between --

THE COURT: The Speedy Trial Act still applies. The

complex designation simply relieved the Court from trying the

matter within 70 days of the Indictment. I'm still required to

bring the matter to trial respecting the speedy trial rights of

your client and others.

You may know, if you reviewed the record, that some

defendants have waived their speedy trial rights, and they've

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Case 3:16-cr-00051-BR Document 785 Filed 06/27/16 Page 29 of 103
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been relieved from preparing for the September 7th trial.

So as far as I'm concerned, that is still the trial

date, and we're going to do everything we can to ensure that

we're ready to start picking a jury on that day in order to

move forward as to those defendants who have not waived their

speedy trial rights. 

Any continuance under the Speedy Trial Act has to

find that the ends of justice warrant overriding the rights of

the parties to a speedy trial.

And so far, in the insistent face of a unified

presentation by all defendants in custody that they must have

their speedy trial rights observed, it's an issue that hasn't

arisen. So I hope that gives you a basic answer.

We need to now move on to the other items on the --

MR. MUMFORD: It does. I would -- I would -- based

on that, I would tell the Court -- advise the Court that I

anticipate raising a motion to address those issues. And if

you want me to, I can -- I can preview it and address that now.

Or, if you want me to, I can just wait. I'll confer --

THE COURT: If your client wants to waive his speedy

trial rights, I need to know right away. And if that happens,

then the September 7 trial date may be adjusted for him.

If your client wants to move to continue the

speedy -- the September 7 trial date, he may file such a

motion, and we can take it up on the particulars.

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But right now your issues are not on the agenda, and

I need to respect the fact that everyone else's are. You were

invited to supplement the status report with a filing and you

didn't, so we have to move through these matters.

So if that's a motion you want to file, you've now

made me aware you want to file it, and I'll address scheduling

of those issues once I get feedback from everyone else.

MR. MUMFORD: The -- and the -- just to clarify, the

motion that I anticipate filing is -- is that it is un -- is a

motion to dismiss based on it's unfair to -- to force a

defendant to choose between the speedy trial and a fair one.

THE COURT: So what is it your client wants? Does he

want to go to trial on September 7th or does he not?

MR. MUMFORD: Well, your Honor's -- your Honor's

rulings have excused the Government from any consequences of

the delays on their part, while -- while holding Mr. Bundy's

feet to the fire, so to speak.

THE COURT: No, Mr. Mumford. I'm afraid you're

misunderstanding. I've simply said that any defendant who

affirmatively waives speedy trial rights need not continue to

prepare for trial on September 7. That's all I've ever said.

Your client insists on September -- a speedy trial.

That's the trial date. No one has moved to continue that trial

date who has not waived speedy trial. So if you want to make a

motion to continue that trial date, you may.

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MR. MUMFORD: I understand that. And I think we've

got on the agenda today that that will be -- that the

deadline -- I think there's a proposed deadline for that at the

end --

THE COURT: For motions to continue and motions to

sever, yes. And I would like to get to that agenda.

MR. MUMFORD: And I guess that's -- that's where I

am, is -- is would -- is it contemplated that that would be a

motion to extend the entirety of the pretrial schedule as well?

Or just --

THE COURT: Any -- Mr. Mumford, hear me clearly. I

am focused on September 7 for jury selection for those parties

who have not waived their speedy trial rights. And I am doing

everything humanly possible to ensure that a fair trial

commences on September 7.

I suspect it's going to take days to pick a jury. I

suspect thereafter it will take days to give opening

statements. I suspect thereafter it will take days and weeks

for the Government to put on its case. And I suspect a

defendant who chooses to offer evidence won't be in a position

to have to do so for months from today and about a month after

September 7. So those are all moving targets, in my mind, with

respect to the obligations.

Now, please take a seat. I need to get on with the

agenda.

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MR. MUMFORD: Your Honor brings to mind the words of

a pop song from the '80s, "Time -- time make lovers feel like

they got nothing but time." And so I appreciate that.

THE COURT: And we don't have nothing but time, sir.

We have rights to respect, as you've noted. And I'm going to

try my best to ensure that we get to that day. 

Now, who else has motions under round 2 headings that

haven't been identified? Anybody else?

All right.

MR. FEDERICO: Your Honor, I'm sorry. One more

regarding a motion to suppress. 

In -- the discovery joint status report identified

that there were digital devices seized that were produced to

the defendants on the 8th of June. There's been some

accessibility issues of those. They will be produced, as I

understand it; the raw images and forensic reports. We don't

have those yet. As we anticipated filing a motion to suppress

on those, it's difficult to know whether or not that's

something we would move to do until we have the underlying

data. So I identify that to the Court as one that, I think

under the category of motion to suppress, would have fallen

under round 2. But because we don't have the discovery on

that, I would ask for leave to file that. You know, we can do

that, I think, fairly expeditiously after we receive the

discovery. But that's on our --

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THE COURT: Let's address that specific point after

we go through the joint statement on the outstanding discovery

issues, and then I'll pull back to these deadlines thereafter.

I want -- as I alerted you in an e-mail, Counsel --

to appoint a committee to help me and court staff deal with the

physics of a courtroom layout for trial.

And so I let you know I needed one lawyer from each

side and one technical person from each side to be part of that

committee, to work with me and our IT personnel.

I will simply note on the issue of what that

courtroom is going to look like, we're still -- we're still

working on the layout issues, and I completely appreciate from

the joint status report the positions set out on behalf of

Mr. Ammon Bundy with respect to public observation.

I don't know how much public observation space will

be available, depending on how many bodies we have to

accommodate at trial, but there will be some. And I can assure

you, we don't need to spend a lot of time on that front.

Those folks who are sitting in the back row in the

courtroom today know that the benches you're sitting on are

attached to the wall. They're not going to be removed. We're

going to do our very best to accommodate all of those who are

going to trial within the spaces available.

But if we need to remove one row because we have to

put a party there and there are lawyers, we'll do that. But

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Case 3:16-cr-00051-BR Document 785 Filed 06/27/16 Page 34 of 103
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that's a work in progress. And this committee I'm about to

appoint is going to be working on that issue.

So you can rest assured there will be some in-court

public presence, and it's going to be driven in part by the

numbers of people we need to accommodate.

So is there one person who's identified for the

Government on this committee?

Mr. Knight?

MR. KNIGHT: Yes, I'll be handling that, your Honor.

THE COURT: And who will be with you?

MR. KNIGHT: Ms. Raina Rallis from our litigation

support section.

THE COURT: And on behalf of the defendants, who is

the one person?

MR. FEDERICO: Your Honor, I volunteer myself in

supporting the -- Joseph Lohner, who is the chief paralegal

from the defender office. He is highly technical.

THE COURT: All right. So I will be in touch with

the four of you to set up a meeting with our IT folks. One of

the issues we're trying to address is simply the electronic

access from various tables to the electronic evidence display

systems. The lines of sight from wherever counsel and parties

end up sitting, to the witness stand. And then for the

inevitable overflow room, the ability to see in an overflow

room those who can't fit in the courtroom, what's going on in

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Case 3:16-cr-00051-BR Document 785 Filed 06/27/16 Page 35 of 103
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the courtroom.

So we're going to need to know things like who's

going to be making the electronic evidence display

presentations. And I think ideally it would be good for all

defense counsel to confer, who are going to trial, so that

there is one technical person the Court will look to. And that

may be your colleague, Mr. Federico, to do the evidence display

presentations. And then to figure out a way to protect the

work product other things along the way. But we'll be setting

up a meeting to address that.

MR. MUMFORD: Your Honor?

THE COURT: Yes, Mr. Mumford.

MR. MUMFORD: May I just address one issue to correct

the record here.

I believe the Government said that they had provided

discovery to us, as new counsel. And we -- I just conferred

with Mr. Philpot, and neither of us have received any discovery

from --

THE COURT: Have you not received materials from

Mr. Arnold's --

MR. MUMFORD: We're receiving from his office, but I

understood them, in response to your Honor's question of the

Government, to say that they had been sending stuff to us.

And if that was -- if that was indeed what they said,

that is not accurate.

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THE COURT: Mr. Barrow?

MR. BARROW: Your Honor, that is not what I said; I

said we sent the discovery to prior counsel. We will work with

Mr. Philpot to send future discovery directly to him. And I

believe other issues have been sent to him as well.

THE COURT: All right.

MR. MUMFORD: And so I'm assuming that means there's

been no discovery that's been produced since -- since we --

we --

THE COURT: Counsel, you need to talk to --

MR. MUMFORD: Yeah, I'll --

THE COURT: -- the prosecutor and not through me.

Don't -- please don't take our time talking to him through me.

We don't have time for that.

Take a seat.

MR. MUMFORD: I'll deal with that. Thank you.

THE COURT: Thank you very much.

All right. I would like to address status on some

existing motions because I want to get these cleared as we go

to the disputed issues on the joint discovery statement. It's

not clear to me, with respect to the Motion No. 545 to compel

notice of surveillance, what the parties' expectations are.

It looked to me, at first, as though the Government

had asserted and certified that this was not an issue because

there wasn't any. And then I'm hearing discussion from

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Case 3:16-cr-00051-BR Document 785 Filed 06/27/16 Page 37 of 103
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Mr. Mumford, and in other filings, about this still being an

issue.

So, Ms. Baggio, I think you filed the motion. Can

you tell me what its status is from your perspective, please.

MS. BAGGIO: Yes, your Honor.

Your Honor, as I understood the Court's e-mail from

June the 13th at 1:46 p.m., the Court asked if the defendants'

motion was moot in light of the Government's representation

that there was not any indication that there was involvement of

the NSA or any other intelligence agency to have collected

information relevant to this case. And second, in any event,

there is not any such information in the possession of the

prosecution team or any agency acting on behalf of the

prosecution team.

I have been in touch with Mr. Knight about this. And

it is correct that there are references in discovery to

different databases that were used by the Government in its

investigation of this case. And I provided an example to the

Government of one such database. And I believe that

Mr. Kohlmetz, in the context of some of these disputed

discovery issues, is going to address some of the other

databases.

It's our position, your Honor, that the issue does

need to be set for argument. That in light of the specific

references in discovery that both, as to question 1, the

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intelligence agencies were involved; and, as to question 2,

that information was made available to the prosecution team and

their investigators because it's in my discovery. So that's

our position.

THE COURT: All right. Who's responding?

Mr. Knight?

MR. KNIGHT: Thank you, your Honor. 

Without getting too far into the substance, the

Government has a different view of what that discovery means.

And I think Ms. Baggio is correct. Perhaps the best course

right now is to set the matter for argument, to put that before

the Court.

THE COURT: With a reply on behalf of defendants to

make the points on an evidentiary -- you've actually filed a

response?

MR. KNIGHT: Yes.

MS. BAGGIO: I think it might be helpful to the Court

if I did file a response to some of these exhibits --

THE COURT: Yes, when can you? When?

MS. BAGGIO: Friday of next week, your Honor? Would

that be okay?

THE COURT: I need a calendar. Give me a minute.

(Pause, referring.)

MS. BAGGIO: Your Honor, may I add something else,

please?

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THE COURT: On that particular issue?

MS. BAGGIO: Yes, ma'am.

THE COURT: Yes.

MS. BAGGIO: If -- I can make it happen by this

Friday, your Honor. I mean, I have this done. So if that

would be helpful, I can make it by this Friday.

THE COURT: Well, I'm going to be reasonable in

trying to put all of this together, so let me just add it to

the list of things I need to set before we're finished this

morning. So --

MS. BAGGIO: Thank you.

THE COURT: And then I take it you're asking for oral

argument, as opposed to the Court looking at the record only?

MS. BAGGIO: That is correct, your Honor. Thank you.

(Pause, referring.)

MS. SHERTZ: Your Honor?

THE COURT: So -- yes, Ms. Shertz.

MS. SHERTZ: While there's a brief pause, your Honor,

I just wanted to note for the record that Mr. Thorn had

initially waived his appearance this morning and then notified

me a few minutes after 10:00 that he wished to be here this

morning. And he is present, out of custody, at this time.

THE COURT: We did note his appearance. I think we

did. Yes. And I told him he was free to go whenever he wanted

to, and that you had been excused. 

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Right?

MS. SHERTZ: I'm just trying to catch up this

morning.

THE COURT: All right. Very good. All right.

Before I get into all of the issues concerning the

discovery matters on your joint report, I wanted simply to note

and get an update with respect to the Ninth Circuit matter and

its relation to the pending motion to dismiss No. 480.

Mr. Federico, can you tell me where things stand

there?

MR. FEDERICO: Yes, your Honor. Oral argument is

scheduled for tomorrow morning at 10:00 a.m., in San Francisco,

on the issue.

The Court -- the Ninth Circuit had granted an

expedited consideration. I don't know, frankly, what that

means in terms of how long it will take the Court to issue a

ruling or opinion, but oral argument is tomorrow morning.

THE COURT: Have you supplemented the record at all

with the fact of your pending motion to dismiss here or the one

that was filed in Nevada?

MR. FEDERICO: Yes, your Honor. The Court -- the

Ninth Circuit ordered supplemental briefing on the question of

mootness in regards to the summaries that related to that

supplement briefing. We did update the Court on what had

happened since the briefing prior, which was our reply. So

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that did include the motion to dismiss that was filed both here

and in the court in Nevada.

THE COURT: All right. Are you going?

MR. FEDERICO: Yes, your Honor.

THE COURT: And is anyone else arguing here from this

group?

DEFENDANT RYAN BUNDY: Yes, your Honor. I have the

right to be there. I would like to be there myself.

THE COURT: That's a matter you'll have to address to

the Ninth Circuit. It's a matter I don't have any jurisdiction

over. The Ninth Circuit determines participation in their oral

arguments, Mr. Bundy.

DEFENDANT RYAN BUNDY: Okay. They have -- you know,

they have asked that I be there, and so I need to be able -- to

be able to do so.

THE COURT: This is the first I'm hearing that this

Court has any issue with it. It's a matter of the Ninth

Circuit having an argument. And I -- it's not my argument,

it's not my jurisdiction.

DEFENDANT RYAN BUNDY: Okay. So we're just

requesting that you order that I be transported there so that I

can be present.

THE COURT: That's not possible in under 24 hours.

Not -- because you're in custody. You may want to seek with

the Ninth Circuit an opportunity to participate by video, or

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something. But there's not any human way possible I can effect

your presence in San Francisco in under 24 hours with you in

custody.

I don't have jurisdiction over the matter, to begin

with, but even if I did, I couldn't do it.

DEFENDANT RYAN BUNDY: Okay. So I request release

from custody so that I may attend.

THE COURT: That request is denied.

The matter has to be addressed to the Ninth Circuit.

It's not a matter for this Court to consider. It's -- I'm

thinking of something else.

You're simply going to have to let the Ninth Circuit

know you want to participate in some fashion. It's not

something I can address.

The appeals are filed to the Ninth Circuit, the

briefs are filed to the Ninth Circuit. You and your standby

counsel can communicate with the Ninth Circuit. But I don't

have any authority there, sir.

DEFENDANT RYAN BUNDY: You -- okay. You -- okay.

Thank you.

MR. FEDERICO: Your Honor, to answer your question,

you had asked whether or not any others were going to be

addressing the Court. I believe I will be addressing the Court

on behalf of -- there are actually five defendants who joined

the appeal, even though there are seven that are in both cases,

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so I believe --

THE COURT: Here?

MR. FEDERICO: Yes, your Honor. I believe I'll be

arguing on behalf of all five.

THE COURT: And will any Government lawyer from the

District of Oregon be participating?

MR. KNIGHT: Mr. Gorder will be appearing on behalf

of the Government, for the District of Oregon.

THE COURT: Do you know if the District of Nevada's

counsel is participating or not?

MR. GABRIEL: No, your Honor. It says it's an appeal

from this Oregon case. Only Mr. Gorder will appear.

THE COURT: All right. But the Court is aware of the

motion to dismiss pending in Nevada, too?

MR. FEDERICO: Yes, your Honor. It was included in

the briefing.

THE COURT: Okay. And then I just remind you, I

would like a joint report by June 20, as previously set, on

whether any developments there affect what we're doing here.

MR. FEDERICO: Yes, your Honor.

DEFENDANT RYAN BUNDY: Your Honor?

THE COURT: Yes, sir.

DEFENDANT RYAN BUNDY: I request immediate hearing

with Judge Jones per -- for pretrial detention, so that I --

because I am not waiving my right to attend that meeting, so --

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(Pause, conferring with Ms. Ludwig.) 

DEFENDANT RYAN BUNDY: Yeah, I can get to San

Francisco by myself if the Court will release me.

THE COURT: We're in session right now. I'm not a

magician. If you wanted to go and you wanted to have release

considered, you should have raised it earlier.

When we're finished in court today, I'll see if Judge

Jones is around. But I don't know that we can address it now.

We have to move on, please.

(Pause, Ms. Ludwig and the defendant conferring.)

DEFENDANT RYAN BUNDY: Thank you, your Honor.

THE COURT: You're welcome.

Ms. Boyer, would you please, in the meantime, contact

Judge Jones' chambers. And let them know of Mr. Bundy's

request to see him today about release, so that he personally

could travel to Nevada [sic] tomorrow. Let him know that the

matter is pending before the Ninth Circuit, that I've indicated

the Court does not have jurisdiction; but he would like to

approach Judge Jones regarding release. Just send an

electronic communication to alert them that the request is

made.

I don't, Mr. Bundy, have any idea whether he's even

here today or can address it. But we'll at least get the word

to him. All right?

Mr. Bundy? Do you understand?

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DEFENDANT RYAN BUNDY: I do. Yes. Thank you.

THE COURT: Mr. Santilli filed a motion No. 689 to

suppress eyewitness identification. And there was a notice

that the Government was taking a look at the underlying facts

Mr. Santilli had asserted as a matter of fact the

identification had been erroneous because he wasn't in the

District of Oregon at the time.

Does the Government seek an opportunity to respond,

or does the Government concede? What -- what's the approach

here on 689?

MR. KNIGHT: We're still examining whether indeed the

factual representations made by Mr. Coan are accurate. And

what we will do is confer with Mr. Coan after we determine if

indeed there needs to be a substantive response to the motion

or if we are withdrawing the evidence he seeks to suppress.

THE COURT: When can you do that?

MR. KNIGHT: We were contemplating taking that up in

the normal course, but we can report to the Court with -- in a

week what our position is with respect to 589.

THE COURT: All right. I'll get back to that too,

then, for scheduling.

I do intend to go through the entire discovery

dispute list, but I want to recover and return to a few other

points on the agenda generally.

It's critical for planning purposes for the parties

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Case 3:16-cr-00051-BR Document 785 Filed 06/27/16 Page 46 of 103
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from everywhere -- from decisions having to do with how the

courtroom needs to be built out, the electronics to be

provided, the -- just the staffing and planning for trial.

And it's critical -- for purposes of these important

motions to sever, motions regarding the so-called Bruton

statements, 404(b) motions, it's critical on all of these

fronts that we have a -- as realistic a count of the number of

defendants who are continuing to plan to go to trial on

September 7.

I don't want to put any person in a position where he

or she doesn't want to make a public disclosure, but I want to

know what the parties' expectations are individually. And so

I'm asking each defense counsel and for the parties who are

self-represented, the three parties self-represented through

their standby counsel, to please send to me an e-mail message

just to me. You may copy the Government. You may copy the

others if you wish. But at least just to me, giving me your

current assessment of whether I should be counting you as

someone for whom I need to provide a place at trial; a desk, a

space, and all of that. Those space issues are very important

to resolve.

I'm not going to hold you to these things. They're

not binding. But they're intended to be helpful to me in

making some physical decisions that will affect those of you

who are at trial.

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You should know, for example, the tables you're

sitting at are going to be replaced with something that's

narrower, something that takes up less space. I'm trying very

hard to figure out a smaller footprint, especially in light of

the concern about needing space for people to observe. But I

need to be able reliably to make some plans. So I'm asking all

of you to give me an e-mail message to that effect sometime

before Friday, noon.

Mr. Thorn?

DEFENDANT THORN: Your Honor, for the record, I would

like to state that I would like to withdraw my plea today at

two o'clock. I would also like to state that -- that in light

of my counsel's actions, in asking her to file several motions,

she hasn't. I would like to file a motion for the Court for a

different counsel.

THE COURT: Okay. Mr. Thorn, I'm going to take all

of those individual matters up at two o'clock today.

Right now I've got everybody else on a different

agenda. I thought you were coming at 2:00. Whatever your

issues are, we'll deal with them then. All right?

MS. SHERTZ: Thank you, your Honor.

(Pause, referring.)

THE COURT: All right. The issue concerning motions

to continue a deadline, the motions to sever, a deadline for

the Government's disclosure of Bruton statements, a deadline

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Case 3:16-cr-00051-BR Document 785 Filed 06/27/16 Page 48 of 103
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for the Government's disclosure of 404(b) evidence, those are

all things I would like to talk about right now. And I

understand you have different perspectives as to what should go

first and who should go first. But the fact of the matter is

these decisions need to get made.

I see, in the joint filing, that the parties agree

that June 30 is the deadline or should be the deadline for

filing motions to continue the September 7 trial date.

Is that still an accurate statement?

All right.

MR. FEDERICO: Yes, your Honor. I believe it is.

THE COURT: All right. Then that will be the date.

The --

MR. KOHLMETZ: Your Honor -- your Honor, Mr. --

THE COURT: I'm sorry.

MR. KOHLMETZ: I'm sorry, your Honor. Mr. Patrick --

THE COURT REPORTER: I need you to turn on your

microphone. I can't hear you. 

THE COURT: Turn on the microphone.

MR. KOHLMETZ: It is on.

THE COURT REPORTER: Okay. 

MR. KOHLMETZ: I'll move it closer.

THE COURT: Could you move it closer to Mr. Patrick,

or trade places or something? There you go.

MR. KOHLMETZ: Just one second, your Honor.

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THE COURT: Okay. Mr. Patrick.

DEFENDANT PATRICK: I've been incarcerated for 140

days so far.

THE COURT: Yes.

DEFENDANT PATRICK: And apparently there's 4

terabytes of discovery, of which I've seen about 8,000 pages.

I'm going through those pages about 25 thou -- 2500 pages in a

24-hour period of time, in doing my due diligence to be

prepared. But have absolute near zero access to the discovery.

It takes a week for me to get another box. And there's all

kinds of video discovery that I filed motions to try and view.

And I don't -- I don't know how I'm being compelled to decide

whether I want to sever when all I really want to do, since the

very beginning of time, is just view the discovery. And it's

nearly impossible, from my perspective. It is --

THE COURT: Mr. Kohlmetz, have you heard from Judge

Jones' chambers?

MR. KOHLMETZ: I have, your Honor. I explained to

Mr. Patrick that there is a meeting on the 22nd.

I am also -- I've told Mr. Patrick the arrangement

that I was able to make with MCIJ was the provision of one

bankers box of physical discovery.

I have about 20 of them in my office. They've been

exchanging back and forth. It's my understanding that some

other defendants may have access to three boxes. I'll be

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Case 3:16-cr-00051-BR Document 785 Filed 06/27/16 Page 50 of 103
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working -- I'll be making a phone call, probably tomorrow, to

Mr. Martinez, to see if I can get three boxes to Mr. Patrick.

Mr. Patrick also has pending a request for a

paralegal-type service to allow him to review the audio and

video discovery that I do have on a hard drive. That funding

has not come through. I told Mr. Patrick, as soon as the

funding is approved, if it's approved, I anticipate it will

be -- that the -- there will be a paralegal who can access and

review that discovery with him.

It is -- I do agree with Mr. Patrick, it's difficult,

but we're making the best of it.

THE COURT: So, Mr. Patrick, your point is you don't

want to be bound by a June 30 date to move to continue. You're

trying it your best to keep up and get up to speed.

DEFENDANT PATRICK: I just -- I don't feel -- I don't

understand how I can be -- I've been asking, since the very

first time Mr. Kohlmetz and I met, I want access to all of the

discovery now. I want it as quickly as possible, and it's --

THE COURT: Mr. Patrick --

DEFENDANT PATRICK: I understand.

THE COURT: -- there are limitations.

DEFENDANT PATRICK: I understand because -- I

understand. I wasn't finished, but okay.

THE COURT: There are limitations because of your

custody status. Judge Jones has graciously agreed to try to

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Case 3:16-cr-00051-BR Document 785 Filed 06/27/16 Page 51 of 103
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work through all of those issues. His chambers is in contact

with you through Mr. Kohlmetz. And so I urge you to continue

working hard on what you have. If Mr. Kohlmetz can arrange

getting you more volume of boxes, all of those issues Judge

Jones will work on to the extent there's a dispute.

So please raise them with him.

DEFENDANT PATRICK: Okay. But I'm still going to be

held to a -- to a 30 -- between now and the 30th --

THE COURT: You're going to do your best. And with

every deadline I set, as you've seen, lawyers file things later

anyway because they say they have a constitutional right to do

so. And I'm trying my very best to be fair on all fronts.

So, you know, if you want to move to continue and you

know it before June 30, you need to file the motion. If you

don't know that you do and something develops thereafter, then

you're going to file a motion then.

But, you know, I'm taking seriously the fact that you

are in custody. And I'm doing everything I can to ensure the

trial begins on time and we move through it fairly.

I can't -- I can't waive a magic wand, and I can't

make the fact that there is a lot of digital discovery here

anything other than it is.

The fact that it exists doesn't mean every digital

image has to be reviewed. All the people who were there know

what they know already because they were there, and it's not

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Case 3:16-cr-00051-BR Document 785 Filed 06/27/16 Page 52 of 103
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like you're having to learn it the first time. But I

appreciate the need to know what the Government contends is

relevant, and I'm trying hard to get to a schedule that will

make that work. So -- 

DEFENDANT PATRICK: I guess it doesn't seem like in

140 days that due diligence is even remotely applied, I guess

is my -- what I'm trying to say.

THE COURT: I understand your point. I'm encouraging

you to work with Judge Jones, who's trying hard to facilitate

communications and access, and all of that.

So that's my response to that issue.

Go ahead and take a seat, please.

MR. KOHLMETZ: Thank you, your Honor.

THE COURT: Thank you.

All right. So I'm going to leave the parties'

agreement regarding June 30 as the deadline for motions to

continue.

I'm going to expect counsel to send me a message this

week, everybody -- one way or the other -- about your

expectations for September 7; from counsel or the defendant to

me. And then I'll at least have the benefit of that input.

I do want to talk about the order in which the issue

of severance, Bruton disclosures, and 404(b) disclosures should

be taken up.

Let me hear first from the Government with respect to

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its view about what -- what's fair in light of the defendants'

perspective that they shouldn't have to move to sever,

shouldn't have to make that decision until the Government's

made its disclosures about Bruton issues and 404(b) issues.

The Government, on the other hand, is telling me they

don't want to have to make Bruton disclosures until they know

who's going to trial. And I get that's ideally a perfect

world, but I -- I frankly think the defendants have the

stronger argument there. That they shouldn't have to decide if

they want -- shouldn't have to try to make an argument that

they can't get a fair trial when linked with other defendants

until they know what the Government's really going to be

relying on at that trial.

Mr. Knight.

MR. KNIGHT: Your Honor, in light of the Court's

comments and in light of No. 3 on the e-mail the Court

distributed to the parties, the Government is in agreement with

the Court's proposal, which is that we have a June 30th date

for severance and continuance but that the Government is

required, by July 6, to file notice of Bruton statements. And

then the parties may file -- the defendants may file by July

15th -- may delay their filing of a motion to sever until that

time if leave is granted.

THE COURT: And what about 404(b)?

MR. KNIGHT: It's our position that that is an

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inherently separate issue and that July 11th is a reasonable

time, at which point the Government would provide notice to

defendants regarding 404(b) evidence.

THE COURT: All right. Mr. Federico? Ms. Baggio?

Or someone else? To --

MR. FEDERICO: Your Honor, I'll try to.

I have been on this issue. I don't know if there's

unanimity. But I think the position in the status report has

been consistent with letters that were submitted and provided

to the Court in the last few months. But the majority, at

least, do prefer that they receive Bruton statements, at a

minimum, before the deadline for motions to sever. I'll say

it's not unanimous. Because, for example, on behalf of 

Mr. Payne, I don't have any objection to the schedule the Court

has laid out, granting, essentially, leave to file severance

after Bruton has been disclosed.

But, on the other hand, I think it's fair to say the

majority stick to the position in the status report. They

prefer Bruton be provided prior to severance, and the 404(b)

accompany Bruton as well.

THE COURT: Is there a practical reason why the

Government can't -- cannot provide the anticipated Bruton

material; or at least the heart of it, if not all of it, sooner

rather than later?

MR. KNIGHT: Well, there are two pieces of it, your

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Honor. One is substantive, and that is, simply reviewing the

material and making sure we do it in a thorough and coherent

fashion to give the correct and accurate notice to the

defendants. And the other, really, is a procedural one. And

that's what we've alluded to before, which is knowing who is

sitting in a room together in a joint trial really informs the

decision making about those statements. And that, of course,

gets to the discussion we've had all along about the order.

I think reasonably speaking on the substantive issue,

July 6 is the soonest we can get that material together -- and

that's what the Court has put in the email -- and get it to the

parties.

THE COURT: All right. Let me think about that

convergence of issues.

All right. I would like to turn to the issues

enumerated in the defense -- in the joint discovery chart --

MR. MERRITHEW: Your Honor?

THE COURT: I'm sorry. Yes, Counsel.

MR. MERRITHEW: On behalf of some of the folks that

have already waived speedy trial and asked for a continuance

and that continuance has been granted, just a point of

clarification.

I would ask that that order specifically reflect that

those severance motions, if they are contemplated by that

second group, not be due by July 15th.

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THE COURT: I will enter an order that any party

who's waived speedy trial with respect to September 7, is

relieved from the motion to sever deadline because your

calculus will be very different than the ones who are facing

the actual choice earlier.

Okay. Let's go to the document 699, which summarizes

contested discovery issues, and the like.

I have to confess, Counsel, I was a bit surprised to

see this many substantive contested discovery issues after

having received what seemed like a representation from you in

your joint discovery reports that discovery was not generating

issues. And, thus, I did relieve you from filing weekly

discovery status reports.

That relief is now gone. By the end of today, you're

going to be back into a weekly discovery status report issue on

any matter that is not addressed with a different schedule this

morning, because there's a lot in dispute here. And I need to

know about these issues as they're coming up, not en masse with

12 very substantive matters.

So let's start first with what is your first item,

and you called it: Availability of all seized digital media to

all defendants.

My question here was whether it would be a solution

to this problem if all defendants agree that their media might

be shared with all of the defendants. It appeared in part the

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Government was concerned that it has access to one defendant's

media who might have private information, and it is concerned

about disclosing that media to another defendant.

If all the defendants agree that all of them could

see all of it, that would moot the Government's point, if I'm

understanding it.

Is that one of the Government's points?

MR. BARROW: That's correct, your Honor. If that was

the case, it would moot that issue.

THE COURT: So let me ask Ms. Baggio this question:

To please undertake conferral with all defendants and see if

this issue cannot be mooted by a stipulation to that effect.

And then the Government can provide that which it was concerned

about providing.

If that does not solve the problem, then I want

another practical solution for the defendants to suggest.

And perhaps one's coming right now. Counsel.

MS. WOOD: Your Honor, I spoke with Mr. Barrows [sic]

this morning. More to follow up on not just the digital

devices but the Facebook and raw data and I think the Nevada

discovery. The ones that the defense had raised the same needs

for.

THE COURT: Right.

MS. WOOD: And my understanding in terms of the

digital devices, in particular, is that the Government has been

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approached by -- and I don't know who, but some defense counsel

who have specifically requested that that information not be

provided. So I --

THE COURT: I think you all need to be frank with one

another, and talk this through. And if the issue can be

resolved among a group of defendants, that group -- defendants

A through K -- all agree that their devices may be shared with

everybody, that moots part of it.

I want a solution that gets you past this

time-consuming roadblock.

MS. WOOD: And the other thing I would say, your

Honor, is that the Government -- although it's not in writing

there -- agrees that they would comply with the alternative

that was proposed by the defense; that they give us any

co-conspirator statements which they would be using, the Rule

16 material, and Brady material. And so --

THE COURT: So, Ms. Wood, I'm assigning to you the

responsibility to continue conferral on those three categories.

To the extent you can acquire agreement among all,

great. To the extent there's an alternative to which the

parties agree and resolve it, one way or the other, you're the

one in charge of marshalling the positions. If there is an

agreed form of order even for some, then submit it. And at the

same time, submit a new statement of "Here are the remaining

issues," a new joint statement, and here are the positions.

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And then I can move to what remains in dispute.

But that ought to -- we ought to be able to solve

this part by agreement, I would think.

MS. WOOD: I will undertake that, and I take that to

mean Ms. Baggio is relieved from the Court having her --

THE COURT: On these particular issues. Since --

since you spoke up, since you were speaking with Mr. Barrow on

the issues, you take the lead on that, and I'm sure Ms. Baggio

wouldn't mind.

MS. WOOD: I'm happy to do that, your Honor.

THE COURT: Thank you.

MS. WOOD: And --

THE COURT: Pardon me?

MS. WOOD: Would you like me to do the same as to the

Facebook raw data -- 

THE COURT: The three items you enumerated while you

were on your feet. You're going to confer --

MS. WOOD: All right.

THE COURT: -- with your members here, and then back

with the Government. And to the extent you can reach agreement

that resolves all of it in the form of an order, you'll tender

it. If you reach an agreement that resolves part of it in the

form of an order, you'll tender it.

And to the extent disputes remain on those three

categories, you'll give me a stipulate -- a joint updated

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discovery chart like this, that says this is still in dispute,

here are our positions, we need a ruling.

And then I'll decide if I need argument.

MS. WOOD: And, your Honor, could I have leave to get

that done by next Friday, the 24th?

THE COURT: Yes.

MS. WOOD: I have other obligations --

THE COURT: That is perfect. That is your deadline.

And so just to be clear, that addresses item No. 1 on

the chart. It's got also this Nevada discovery, item No. 2?

MS. WOOD: Yes, your Honor.

THE COURT: And then there was another --

MS. WOOD: The Facebook, which is on page 7 of the --

THE COURT: And that is by count item No. 7.

So in the order I issue today, I'll just make general

reference to those items; will be addressed in the manner we've

just put on the record.

MS. WOOD: Understood, your Honor.

THE COURT: Thank you, Ms. Woods. 

Yes, Mr. Mumford.

MR. MUMFORD: Am I to understand that -- by that

then, that the Government's certification that their discovery

is substantially complete did not include --

THE COURT: Mr. Mumford, you need to talk -- you need

to talk to opposing counsel. I'm not going to go back to that

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certification question one more time. You need to do your own

due diligence, your own discussion, and your own submission as

I have directed.

All right. Let's move to item No. 3 on that chart.

It's titled, Large volume of e-mail messages under review as of

5-18-16 that Government believes will not be discoverable.

I don't know what this means. So someone needs to

tell me what -- what the -- what the subject even means, and

then what -- what the positions are.

Who can speak to this?

Ms. Baggio? Ms. Wood?

MS. WOOD: Your Honor, we're just basing the large

volume of e-mails that the Government thinks is not

discoverable on their statement in the status report for

discovery that was filed, I believe, on the 16th.

THE COURT: Well, let's ask them --

MS. WOOD: So let's ask them first.

THE COURT: Okay. What does this mean?

MR. BARROW: Your Honor, the issue was raised by

Ms. Wood, so I thought -- that's why I thought she may

articulate it better than I did.

But my understanding is that this statement about the

large volume of e-mail messages under review as of May 18th is

it is a reference to a statement that we made in the May 18th

status report about things that we were still working on.

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We certified substantial compliance, but we explained

that we believed that our duties were ongoing. And there were

several categories of information that we were continuing to

work on. We have continued to review e-mails, and we've

produced e-mails. 

My understanding is that this report reflects

something different. And that's a request to disclose the

agencies and the positions and the authors and recipients of

e-mails. And -- and --

THE COURT: I'm confused.

You're saying e-mails have been produced.

MR. BARROW: Correct.

THE COURT: And your understanding that the

defendants are asking for you to identify who the author or the

recipient is on these various e-mails? Is that what we're

getting at?

MR. BARROW: My understanding is that the defense is

alluding to the fact that we noted there were a lot of e-mails

in the case. We, in that report, talked about reviewing them

and producing the e-mails that are discoverable.

My understanding of this issue is they're asking us

to take a look at the e-mails that we don't believe are

discoverable, and providing some identification regarding those

e-mails. Perhaps which agency generated the e-mails, who the

senders and receivers are. But I don't have a better

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understanding of that issue than I just said.

THE COURT: Then let me hear from you, Ms. Wood.

What is he getting at? What are you concerned about?

MS. WOOD: Well, your Honor, our concern, as the

Court can see from the various motions to compel production of

discovery, is that the defense maintains that certain discovery

that we know exists -- because we've seen bits and pieces or

suggestions of it in discovery -- the Government -- we say it's

material; we need it under Rule 16; we need it material to our

defense; we need it under Brady. And the Government says, No,

we don't agree. It's not material.

And so that's our concern. If the Government has

e-mails and they're going to decide they're not discoverable --

well, they're in their possession and control. If we don't

have at least some understanding of what they're claiming isn't

discoverable, we're not in a position --

THE COURT: Can you give me any authority at all,

Ms. Wood, for the proposition that a district judge is supposed

to require the Government to itemize evidence it determines is

not discoverable, like it does happen on the civil side --

(Defendant Cavalier exiting courtroom.) 

THE COURT -- and a privilege log, or something on

that order? Do you have any authority under Rule 16 of that

obligation?

MS. WOOD: Your Honor, the only thing I'm trying to

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do is to make an informed decision as to whether we should be

asking the Court to conduct in-camera review --

THE COURT: Right.

MS. WOOD: -- of information that would otherwise --

THE COURT: As -- as reflected, this issue is not

ripe for me to take any more time on.

MS. WOOD: Correct.

THE COURT: I'm adding it to your list.

MS. WOOD: Fine.

THE COURT: Because you're the one -- the

spokesperson on it.

To the extent you -- you, on behalf of your client or

generally on behalf of other defendants, believe there is a

discovery dispute in this area, continue your conferral. If

you can resolve it, let me know. If you can't, give me a more

precise articulation of what the issues are and the positions,

so that I can rule on them.

MS. WOOD: We'll do that, your Honor.

And I've spoken with Mr. Barrow, and it's -- one

problem has been the crush of time on all parties. And so it

has limited what normally would be a more thorough discourse

and resolution.

We just -- the Court asked to be alerted, and that's

really what we intended the do here, is alert the Court.

THE COURT: All right. And from alert, now we're

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going into substance. And can you do this also by the 24th?

Include it with the discussion? And if you can't, you can ask

for more time.

MS. WOOD: I will do that, your Honor. And perhaps

at least one other person on the defense team will decide to

help with some of these issues, so --

THE COURT: You can pick a delegate to help you.

(Defendant Cavalier reentering courtroom.)

THE COURT: Thank you.

All right. Let's move to item No. 4. There's been

now a motion filed regarding item No. 4. So I want to know

what the Government's expectation is regarding a response.

Just the regular round 2 motion?

MR. BARROW: Yeah, your Honor. I would ask that they

be set with that, in the regular course.

THE COURT: It seems to me the argument is

articulable pretty concisely and should be made way sooner than

weeks from now because it's an important issue. It needs to

get articulated.

Can -- can you file a response to the discoverability

issue? A response to that motion by this Friday? The argument

is, is it discoverable or not? It's a straightforward

argument.

MR. BARROW: We can do that, your Honor.

THE COURT: And on this one, who's the filing lawyer

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Case 3:16-cr-00051-BR Document 785 Filed 06/27/16 Page 66 of 103
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on this one?

Yes, Mr. Olson.

MR. OLSON: Yes, your Honor.

THE COURT: If the Government files a response

Friday, can you file a reply by next Wednesday?

I would like to look at the written record first

before I decide whether we need to redeem everyone for oral

argument.

MR. OLSON: Yes, your Honor.

THE COURT: Okay. So that will be the briefing

schedule for that issue.

Item 5 is also the subject of a motion.

So I need a response and a reply deadline here. This

one, I think, is not quite as straightforward, although it --

again, the Government's principle is -- is articulated in

the -- in this and the other report.

On the one hand, it seems to me that if -- if the

argument defendants want to develop is that they were justified

in carrying firearms during the occupation because of their

concerns regarding law enforcement and federal agent response

with the use of force, that relevance exists when the

occupation -- as you've all called it -- began.

And whatever the defendants saw or observed regarding

the potential for law enforcement force was what they saw or

observed. The defendants know what they know. The defendants

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Case 3:16-cr-00051-BR Document 785 Filed 06/27/16 Page 67 of 103
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know what they saw. The defendants know what they were seeing

in media about what the response was going to be.

So the idea that the Government has to provide

discovery around this is -- is an issue I'm having trouble

with. So what I would like is a Government's response and a

brief in reply. And, in theory, it would be nicer if we could

do it sooner rather than later.

MR. BARROW: We can respond --

THE COURT: I know it's Wednesday. When can you do

it?

MR. BARROW: Let's put it on Friday.

THE COURT: All right. And then, Mr. Olson, are

you -- no, this is Ms. Wood.

MS. WOOD: That's mine, your Honor.

THE COURT: Okay. Can you do a reply then, too?

MS. WOOD: I am in Medford Monday and Tuesday, so I

would like to have until Friday, the 24th --

THE COURT: You are doing a lot. Do you want until

the following Monday?

MS. WOOD: That would be -- that would be good.

THE COURT: In which case you can file your

opposition this coming Monday. Because Ms. Wood is going to be

busy anyway. All right? So you file the opposition on -- on

this show-of-force display issue by Monday, next.

And then, Ms. Wood, your reply will be the Monday

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after. I want to review the arguments before I decide whether

we have to have oral argument on that one.

MS. WOOD: Fine, your Honor.

THE COURT: All right. Now, the item 6 on the chart,

information related to witness identification practice and

procedure. It seemed to me the Government should be doing a

search to ensure that it has produced all the photographs that

were used in connection with identifications. That would seem

to me discoverable.

So if the Government searches and then produces all

of the photos that it used in -- its agents used in the course

of identification, that would go a long way to resolving this.

If the Government says we've searched, we've

identified this universe of photographs, we've produced all

that we have but there is a subset of that universe we don't

have anymore and we can't produce it because no record was kept

of them, then that would be a certification that they've done a

search; that they've produced that which was discoverable.

So I'm inclined to simply direct the Government to

ensure by the representation of an officer of the court in the

record that a diligent search was made; that all the photos

used in identifying a witness in the course of the

investigation have been produced or at least identified. Of

those identified, the subset that don't exist anymore are

identified, too. And we don't have them, or why, or whatever.

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An explanation of what the state of the discovery is. And that

the remainder have been produced. It seems to me that would

solve the problem.

But am I missing something, first, from the

defendants' perspective?

Who's speaking on -- yes.

MS. HARRIS: Good morning, your Honor.

THE COURT: Counsel.

MS. HARRIS: I don't have too much to add. I think

the Court has accurately summarized our position.

One -- I do think that the certification should

include some kind of explanation of, you know, sort of what --

what happened; what's missing and what happened to it.

THE COURT: Right.

MS. HARRIS: But I also think, though, that we're in

a -- sort of an unusual position in that so many of our

clients' images and likenesses were broadcast very widely

before they were interviewed by law enforcement agents. And so

this is kind of an important and evolving issue.

We are in the position of having to rely exclusively

on the Government's report to know whether witnesses were even

shown a photograph.

THE COURT: Right.

MS. HARRIS: And so I do think that the certification

should include -- or should apply to sort of all witness

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interviews. The agents are in the best position to know

whether or not photographs were made a part of the interview

process.

THE COURT: Well, what I'm contemplating -- tell me,

Ms. Harris, if I'm not addressing your point.

It seems to me the Government should be able to say

after, again, checking in with all of the witnesses, what

photos were displayed for identification purposes.

Report back to me what were displayed, and where are

they? Show the photos. And if they don't have them and can't

document them, explain: I can't, I don't have it, I didn't

keep a record, whatever.

Is that what you're saying?

MS. HARRIS: Yes. And also relevant to the beginning

of these proceedings, because some of these photographs have

been identified and the Government has said, Thank you for

identifying those, we will produce them, we don't have them

yet. Should some of those photographs -- and I'm thinking of

my client in particular. Should some of those photographs,

upon production, give rise to a motion to suppress, I would

request leave of the Court to file that motion if appropriate

at that time.

THE COURT: I'll include in today's order omnibus

language to that effect.

If -- you know, the Government's position is they

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made substantial -- they -- they produced substantially the

discovery, and yet the point is made that it's still

continuing. You can't be required to make a motion on

something you didn't have. We'll have something on that

ground.

Now, Mr. Barrow, to the solution I'm proposing, is

there a problem?

MR. BARROW: No, your Honor.

I believe we -- I have attempted to make that

certification in court today, but the defense suggested we have

until June 30th.

I can double our, you know, checks and endeavor to

make sure there are no errors in that certification. And I

would ask that we be allowed to --

THE COURT: All right. What I would like you to do,

Ms. Harris, is to continue to confer on this line with

Mr. Barrow, to ensure you're on the same page. But that will

be the resolution of this issue, unless you tell me before 

June 30 that there is a problem --

MS. HARRIS: Thank you.

THE COURT: -- in a joint submission.

MS. HARRIS: Okay. Thank you.

THE COURT: Mr. Bundy, I have an electronic message

from Ms. Boyer that it does not appear Judge Jones's chambers

is in session today. There's no one there.

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DEFENDANT RYAN BUNDY: Okay.

THE COURT: So there's not any more I can do about

that particular issue.

DEFENDANT RYAN BUNDY: You have the authority to --

THE COURT: I'm not going to release you, sir, for

the purpose of going to the Ninth Circuit because you did not

seek from the Ninth Circuit even an effort to be there.

So we're not going to deal with it here.

DEFENDANT RYAN BUNDY: I have sought an effort,

though.

THE COURT: Well, I'm not in a position to have

jurisdiction over the matter. So your motion, if addressed to

me, for release to the Ninth Circuit is denied for the reasons

I've already stated. But I'm just telling you, passing on the

message, Judge Jones is not there. So go ahead and take a

seat, please.

MS. SHERTZ: Your Honor, if I may -- it's certainly

not my issue. I don't mean to complicate things. But I was on

autopilot when I came to court, and stopped at 10, and he was

on the bench. So --

THE COURT: They are not on the docket, so I can't --

I can't --

MS. SHERTZ: I was just trying to share some extra

information --

THE COURT: All right. So, Ms. Ludwig, if you can

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reach them when we can't, you may. But I'm simply passing on

what I know. And I know you have to leave.

MS. LUDWIG: May I be excused to go see if -- to

interact with Judge Jones's staff in person?

THE COURT: Yes. You may. You may.

And Mr. Bundy, you're doing fine on your own.

(Laughter.)

THE COURT: No offense, Ms. Ludwig. She's doing

fine, too.

(Ms. Ludwig exits courtroom.)

THE COURT: Okay. Can we get back to what we were

working on, which is -- I think I've just resolved a mechanism

for item 6. Item 7 was the Facebook issue.

Now I need to be told about item 8. Someone needs to

tell me what this so-called Guardian database is and what it

is -- how the issue arises. The response --

Can -- can I have quiet, please.

The response that the Government reflected about not

being aware is not a sufficient response in any event because

it doesn't represent a certification that information has been

sought and does not exist. So I want to know what the problem

is. 

But you need to start at the beginning, please,

Mr. Kohlmetz.

MR. KOHLMETZ: Your Honor, I agreed yesterday to

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Case 3:16-cr-00051-BR Document 785 Filed 06/27/16 Page 74 of 103
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assist Ms. Baggio in this. And so I've done a little bit of

research. It is kind of an evolving issue. But let me just

explain.

The Guardian and eGuardian database, as I understand

it from publicly filed documents that are available online, the

Guardian program is an FBI information, investigatory sharing

program. It shares law enforcement investigatory information

between local, state, and federal law enforcement agencies.

The -- there's two components. There is an internal

FBI network called Guardian, and then there's the broader

multi-jurisdictional network called eGuardian. So when I refer

to Guardian, I'm referring to both.

The -- the system is designed to collect a wide

variety of information from all local, state, regional, and

even private sources.

THE COURT: And you're saying who has access to this?

MR. KOHLMETZ: The FBI, your Honor.

In the discovery, there have been repeated

references, particularly when noting interviews of subjects.

In the applications for search warrants and in the application

for court orders, there have been references to information

contained in the Guardian database as well as other databases

that I'll get to in a minute.

There are also references in the general

investigation to checking the Guardian database for information

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Case 3:16-cr-00051-BR Document 785 Filed 06/27/16 Page 75 of 103
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related to this person, or this place, or this activity.

The databases, in addition to Guardian, that we would

be seeking, one was already mentioned by Ms. Baggio, which was

the DIVS, which is the data inventory -- give me one minute,

your Honor. And visual -- Data Inventory and Visualization

Database, which is maintained also by FBI.

It interacts with and is designed to scoop up

electronic information primarily under FISA, but it also has

been broadened and -- to nonterrorist-related electronic

surveillance. The FBI has access to that system as well.

The third critical one that I seek is also ORION,

which is another FBI database. It is the Operational Response

and Investigative Online Network.

THE COURT: With respect to the databases you're

describing, and others, what is it you're seeking from the

Government as to which a dispute has arisen?

MR. KOHLMETZ: Your Honor, it's clear from the

discovery that information contained in these databases was

utilized, was referenced both in the general investigation and

in factual assertions made in support of affidavits and

application for search warrants and orders. These databases

are incredibly comprehensive and incredibly powerful in

amalgamating information and are term searchable. It is clear

to me that the FBI has repeatedly term searched these databases

during the investigation of these defendants.

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THE COURT: What is it -- what is it --

MR. KOHLMETZ: I'm asking the Government term search

these databases for all of these defendants, the -- the -- the

Government witnesses that they -- as they are identified, and

any human sources of information to ensure that we have --

THE COURT: You're going to have to file a motion on

this, a specific --

MR. KOHLMETZ: And Mr. Barrow has told me that. You

asked for information, so --

THE COURT: Oh, no. I thought I was going to be able

to work through this to some direction and get it resolved.

It's clear this is a substantive and complicated matter. The

motion needs to get conferred, filed after complete conferral.

MR. KOHLMETZ: Yes.

THE COURT: You need to narrow the dispute as best

you can, and then file a motion and a response.

When can you file your motion?

MR. KOHLMETZ: Not by this Friday. By Friday next.

THE COURT: June 24. Yes, that will be your motion

deadline.

And a response one week, July 1. 

MR. BARROW: That will be fine, your Honor.

MR. KOHLMETZ: Mr. Barrow will be my conferral point

on that.

THE COURT: Yes. And then once I see the motion and

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the response, I'll determine if a reply is needed or if we just

go right to argument. All right?

MR. KOHLMETZ: Thank you, your Honor.

THE COURT: Item No. 8, then, is covered that way.

Item No. 9 is database collection on defendants' and Government

witnesses if relevant material. 

Is this the same issue?

MR. KOHLMETZ: That's the same issue, your Honor.

THE COURT: All right. Thank you.

And then nonTitle III FISA monitoring and

communications, is that the same? Or is that something else?

MS. BAGGIO: Your Honor, this one is mine, and this

is something else.

THE COURT: Okay.

MS. BAGGIO: Your Honor, I have made a request. My

initial request was on May 20th. But then, again, a separate

one on June 9th, for the Government to disclose to us whether

the -- the investigation involved warrantless monitoring. And

I have provided a letter explaining the basis for my request,

to the Government.

And our position is that if the Government utilized

warrantless monitoring based perhaps on a theory that the

defendants did not have an expectation of privacy while they

were within the refuge buildings, that we're entitled to any

communications under Rule 16; any statements by the defendants

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that were seized or obtained during the occupation.

THE COURT: Give me an example, would you, please.

MS. BAGGIO: Thank you, your Honor.

For example, what -- what we understand the

Government is able to do is use a computer or a telephone and

turn on a listening device. Or another example would be based

on the discovery received and reviewed by me in this case, the

Government seemed to have known that it was a possibility that

this was going to take place. If that is true --

THE COURT: "This" being --

MS. BAGGIO: The -- the -- the entry into the

buildings. I'm sorry, your Honor. The entry into the

buildings. And if that is true and the Government placed

listening devices within the refuge or had them there already

for security purposes but turned them on to listen to what --

THE COURT: So you're trying to find out, for

example, if there was a nonTitle III or nonwarrant-based

listening device used by the Government, thus, in the

investigation as the facts were developing, and that kind of

thing?

MS. BAGGIO: That is correct, your Honor. And we

believe that it's discoverable under Rule 16, but I would also

submit that it's even discoverable moreover to my client,

Mr. O'Shaughnessy, because of the information we know that the

discussions that took place on the refuge, when he visited

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there, would have been exculpatory in nature.

THE COURT: Let me hear what the Government's

perspective is on this.

MR. BARROW: Your Honor, I didn't understand the

request when it came in. And I had a conversation with

Ms. Baggio, and she gave me the following example.

She believed that after leaving the courthouse, on

one of the occasions, she was followed closely by someone. And

that that was an example of nonTitle III interceptions.

What I told her -- and what we represent -- is that

any defendant statements that are discoverable under Rule 16

will be produced. And we've produced many such statements.

They exist in many forms. For example, if the

defendants broadcast from YouTube, and we've obtained it from

the Internet, we have produced that in discovery. So in every

instance that I'm aware of, that we have a defendant's

statement, we've produced it under Rule 16. If we find out

tomorrow another example of a defendant's statement that comes

in from any form, we'll produce it.

So in our response -- you know, I was trying to

allude to the fact that we think we've complied with that

request. And I'm not aware of any statements that we haven't

produced. And, again, in this -- just the very nature of

this -- this case, we'll continue to look for them and produce

them when they're available.

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But the notion that there was some exotic mechanism

for collecting information, it just isn't -- it isn't accurate.

THE COURT: Then it seems to me that the Government

should be able to do what you've been directed to do on some

other items this morning. Make a thorough review of -- through

your agents, and otherwise, to ensure there are not existing

recordings or other interceptions that are nonTitle III-based,

nonwarrant-based, and then make a certification as an officer

of the Court that there aren't any other statements of any

defendant that have not been produced. It seems to me you

should be able to do that.

Would that address the issue?

MS. BAGGIO: It would, your Honor. Thank you. And

just -- the Government responded with regard to someone

following me. That was my first request. The Government

responded, That didn't happen. I'm not following up on that,

your Honor. I'm referring, from Mr. Barrow's reference, to the

subsequent letter of June 9th, that detailed these other

reasons why we have concerns about monitoring.

THE COURT: And the reasons you have concern are

you're thinking it's possible, but you don't have evidence that

it happened?

MS. BAGGIO: That is correct, your Honor. That is

correct.

THE COURT: So with the example counsel cited today,

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and the example in her letter of June 9th, I want the

Government to go back and to confer with all of the relevant

agents to ensure there is not existing any other collection or

record of a statement of the defendant in the possession of the

Government or its agents here, and then so certify.

Can you do that by the 24th?

MR. BARROW: Your Honor, we would ask for a little

more time on that because of the complexity of that issue.

THE COURT: All right. July 1.

MR. BARROW: That will do, your Honor. 

I want to raise the possibility, however, that on

July 3rd, someone posts something to the Internet that we can

collect --

THE COURT: Well, Counsel, you know how to certify a

true statement. It's true through the date it's made. And you

continue to say, as you have, that to the extent there is new

information that comes to the Government's attention,

notwithstanding the Government's best efforts, whether it

preexisted or not, if you become aware of it, you will have to

disclose it.

MR. BARROW: We will, your Honor. Thank you.

MR. MUMFORD: Your Honor, may I --

THE COURT: Yes, you may.

MR. MUMFORD: May I just address -- I'm trying to be

helpful here. But it seems to me that these -- the issues that

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we're -- we're talking about are -- are both whether attempts

were made, whether evidence was collected under these -- these

different things. And I would just ask -- I think that I hear

our defense side saying, We want to know, first of all, whether

the defense -- whether the attempts were made to collect

information under this, and whether there is any responsive

information that should be produced under Rule 16. So I would

ask that the certification in that respect cover -- cover both

of those.

THE COURT: You may confer with counsel about that

first.

MR. MUMFORD: Okay.

THE COURT: Right now the order goes to looking into

that which exists, as opposed to that which might have existed

but doesn't exist.

All right. Item 11, then. Information regarding

informants, undercover agents, provocateur, et cetera.

The Government said it would produce reports

regarding this information no later than July 1. I assume

that's acceptable to the defense, and you'll let me know if

there's an issue beyond that. Or no?

MS. BAGGIO: Your Honor, I read the response to say

that it's just related to confidential sources. And with the

Court's intent to issue the omnibus ruling, that we'll be able

to raise subsequent motions, based on subsequently disclosed

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evidence. That's fine.

But I do also believe that there's a separate

question about the use of media sources, as well as the agent

provocateur.

THE COURT: All right. Then you all need to confer

some more about this. All right?

If there's an issue, you need to give me an updated

joint statement by next Friday, June 24, on this issue 11.

If -- confer, get more specific.

If there's a problem you can't resolve by agreement,

then tell me and I'll make a ruling or I'll get you back for

more detail on it.

MS. BAGGIO: On June 24th that's due?

THE COURT: Yes.

MS. BAGGIO: Thank you.

THE COURT: Okay. Item 12 is called "propaganda."

I don't know what this issue is. So, Ms. Baggio,

maybe you can tell me what the issue is, and then I'll hear

what the Government's issue is.

MS. BAGGIO: May I just have a moment to write down

what you said about the last --

THE COURT: Of course. And we'll try to issue an

order, hopefully today or tomorrow, to confirm dates.

MS. BAGGIO: Your Honor, the last request is based on

publicly released e-mails through Governor Brown's office that

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include FBI e-mails referring to efforts to grab and own social

media.

And our perspective is that this is discoverable

for -- on multiple levels. But we believe it's material and

relevant to the defense in general. But we also believe it's

relevant to the defendants to be able to raise and supplement

the record as to a motion for change of venue because if the

Government is trying to affect public perception of events as

they're happening, that would be relevant to the way the public

receives information about those events.

So that's the basis for the request, your Honor.

THE COURT: Why does the Government say it doesn't

believe this is information that's discoverable?

MR. BARROW: Your Honor, I first heard of this issue

yesterday, and I talked to Ms. Baggio about it for the very

first time yesterday.

I don't precisely know what she's referring to. She

referred to the same e-mail she just described. I have not

seen that e-mail. My understanding is that is an e-mail --

THE COURT: Then I'm directing you to continue

conferral on that. The same deadlines I just set up for the

last issue, item 11, apply here. More conferral. If there's

an issue, then I need to know about it. But you're obviously

not ready to go there.

I want to turn now to the list of what's called

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uncontested but unproduced discovery.

Who's -- who's speaking to these things? It looks

like basically what are needed here are deadlines for the

Government to produce that which is allegedly uncontested.

Ms. Harris, is that you? Or, Ms. Baggio, is that

you?

MS. BAGGIO: I'll be glad to represent on this one,

your Honor.

THE COURT: All right.

MS. BAGGIO: This was my best effort to just record

items that I understood the Government has just said, We

haven't got them to you yet, but we're not fighting you as to

whether or not we're going to produce them.

THE COURT: But you want a deadline? 

MS. BAGGIO: That is correct.

MR. BARROW: Your Honor, I'm sorry. We have

articulated our best estimate and when we could comply with

that; in each of these individual issues. There are a couple

of issues in this list that -- for example, the first one, I

believe, is an issue that Ms. Wood has raised that I don't

believe involves what the Government has provided. I'm not

entirely sure about that.

But if we go through the list below that, images of

digital media, some of that raises the same issue that we

talked about at the beginning of the hearing.

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THE COURT: Right. Right.

MR. BARROW: In terms of the big categories here that

we are trying to get out the door, that involves really the

forensic reports from digital media and the forensic reports

from the Facebook searches. And we've talked about trying to

make those available within a week.

THE COURT: Ms. Wood, let me ask that when you're

conferring and working up to narrow the issues assigned from

the disputed list you notify me if anything that's called

uncontested actually is contested and has to be taken into the

reports you're making there.

In other words, there is some overlap here, and I'm

not clear what it is people are asking me to rule on today.

I'm going to set a deadline with respect to dates,

where the Government's promising production but hasn't yet, so

that we just get the matter moving. And I'm going to say July

1.

And -- and, again, the order from today will indicate

that with respect to new matter about which the parties didn't

know -- defendants particularly -- then you have leave to seek

leave to file another motion, despite the deadlines already

set.

So I think that should take us through the discovery

report, unless there's something else someone wants to raise on

discovery before we move on to other issues.

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MS. WOOD: Your Honor, I just want to ask if in lieu

of the discovery committee filing a report next Wednesday

saying we're going to tell you all of this stuff on the 24th,

if we could just have the 24th --

THE COURT: That was an idle threat. That is not

being acted on just now.

(Laughter.)

MS. WOOD: All right. Thank you. 

THE COURT: -- since you've been assigned a specific

task.

But what I can't have happen is the next time we have

a status conference that I hear for the first time that there

are 12 significant disputed issues. That cannot happen.

If there are problems, I need to know about them long

before next July's hearing. So I -- I think most of these

issues are coming under your -- your auspices here. But if

there are any discovery issues -- any that any party has a

problem with -- let me know. You're free to file a joint

statement after conferral that says you need a ruling.

Let me know, and I'll rule on it. It doesn't have to

wait now until the status report, so --

MS. WOOD: And, your Honor, just so the Court

understands -- and I'm sure you read through the supplemental

information --

THE COURT: Yes.

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MS. WOOD: -- part of it is just there hasn't been

enough hours in the day for us to review and identify issues.

And so --

THE COURT: And I'll just respond to that, that

I'm -- I'm pushing us all hard because I respect the rights

asserted by the parties to a speedy trial and a fair trial.

And we're all human. We're doing the very best we can on many

fronts. I want to continue to commend all counsel for these

hard efforts, but that doesn't mean it can't be done. Just

because the record includes a lot of material doesn't mean

every digit has to be reviewed by every lawyer.

The people who were there know what happened. They

know what they saw, they know what they heard, and they know

what to look for. And you're doing a great job thinking beyond

the box and trying to get the Government to either disclose

that there's more that you haven't thought of or assure you

that it doesn't exist. But, in the end, it's not as if the

parties don't know fundamentally what happened.

The real question ultimately is what does it amount

to legally. Was there an illegal conspiracy? Or was it the

exercise of a First Amendment and a Second Amendment right as

you've all been telling me? That will be decided, ultimately,

by a jury. So let's just keep working forward.

MS. WOOD: We'll do that, your Honor. But I'm sure

the Court knows -- that I've learned over 35 years of

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experience -- is that defense counsel can't just rely on what

their clients remember about events and --

THE COURT: I know. And you're working as a team and

you're coming up with ideas as a group that you wouldn't have

individually. That's to be commended. And I also note that

you have and your client have opted out of the September 7th

trial date. So --

MS. WOOD: (Nods head.)

THE COURT: -- the decision was made; you move on.

MS. WOOD: Thank you.

THE COURT: All right. I want to take about a

ten-minute recess because I want to go back and, on my own, get

some dates for recitation back to you. And I just want to have

a -- the opportunity to review my notes, and do it in the

context of a chronology.

So for about ten minutes, we'll be in recess, and

then I'll be back.

(Recess taken.)

THE COURT: Thank you, everyone. Please be seated.

I have a couple more agenda items, and then I'll go

back and review a few dates. And then we'll adjourn the public

session, and I would like to meet with defendants and counsel

ex parte.

Ms. Ludwig, you were able to connect with Judge

Jones?

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MS. LUDWIG: In a manner of speaking, your Honor. I

saw him. I spoke with Becky. They took down my phone number

and indicated they would get back to us as to whether a hearing

can take place today.

THE COURT: All right. So at least you made that

connection.

MS. LUDWIG: Sort of, yes.

THE COURT: All right. That's all we know then.

DEFENDANT RYAN BUNDY: So, okay, before we finish

here, I do have a few administrative questions and a few points

of clarification. I don't know if you want to go through those

now or towards the end.

THE COURT: Go ahead now.

DEFENDANT RYAN BUNDY: Okay. First of all,

concerning the OS [sic] OIG investigation on the LaVoy Finicum

shooting, I did not have a schedule here before me until now.

I had to borrow one from Amy Baggio. But I want to make sure

that that's made a matter of record, that this be brought up.

This is a very important issue.

THE COURT: There's a motion, there's an opposition.

There will be a reply. I'll review it. I'll decide if oral

argument is warranted. If it is, I'll convene it. If it is

not, I'll rule on the record.

DEFENDANT RYAN BUNDY: Okay. Thank you.

THE COURT: All right. So it definitely is part of

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the record. It's being briefed. It's on the to-do list.

DEFENDANT RYAN BUNDY: Okay. I wanted to make that a

matter of clarification because it seemed like it was brushed

over too quickly before.

THE COURT: It was only rushed over because we were

talking about the benchmarks for getting it in front of me.

DEFENDANT RYAN BUNDY: Okay. Thank you.

THE COURT: All right. Go ahead, Mr. Bundy.

DEFENDANT RYAN BUNDY: I have some more

administrative questions.

Do you understand that I am a living, breathing man,

being warehoused in a commercial zone against my will? And

that it is my wish that you restore mind, body, and spirit --

which is exempt from liberty -- the liberty to prepare, to

defend myself against these three men who come against me? And

that I will return to bring remedy to this matter. My word is

my bond.

THE COURT: I understand you have said that, and it's

noted on the record.

Go on. Your next point.

DEFENDANT RYAN BUNDY: Okay. You mentioned earlier

that you do not have authority to release me concerning this

going to this hearing on the Ninth Circuit. Does that also

mean you do not have authority to retain me?

THE COURT: You are already retained; that is,

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detained under an order of the Court. That's the standing

order. I'm not reviewing it.

You know that Judge Jones has agreed to take up

motions to review detention as an assistance to the Court, so

I'm not going to take up that release issue any further,

Mr. Bundy.

DEFENDANT RYAN BUNDY: All right. Concerning that

first question, you said it was noted.

Do you have an answer for that question?

THE COURT: I'm not going to take time to answer the

question. It's not in the form of a matter that even rises to

the need for the Court to respond. So you've made your point.

It's on the record. If you think it was error for me not to

deal with it, you've got a right to appeal.

DEFENDANT RYAN BUNDY: Okay. I few other questions,

your Honor.

THE COURT: Yes, sir.

DEFENDANT RYAN BUNDY: Is your pension tied in any

form or fashion to the multi -- Multnomah County Detention

Center?

THE COURT: I'm sorry. I don't -- I did not

understand what you say. Say that again. Say that again,

please.

DEFENDANT RYAN BUNDY: Is your pension -- let me --

your pension, your -- is it tied in any form or fashion to the

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multi -- Multnomah County Detention Center?

THE COURT: No.

DEFENDANT RYAN BUNDY: Okay. Have you or your Honor

ever received or heard -- received any credits, checks, money

orders, or electronic funds transferred from the plaintiff, the

United States of America Corporation?

THE COURT: I'm a United States District Judge. I

receive compensation from the United States Government for my

service.

DEFENDANT RYAN BUNDY: Okay. Thank you.

Are you aware that the United States Code 18-4001(a)

forbids you to hold me without an act of Congress? Under what

act of Congress are you holding me under?

THE COURT: Mr. Bundy, you've been detained by order

of the Court. I'm not going it take up detention issues again,

I repeat.

Please not -- don't waste everyone's time with

matters you know have already been addressed.

DEFENDANT RYAN BUNDY: Okay. Thank you, your Honor.

Are you aware that I have not been provided the

original charging instrument?

THE COURT: You received the Superseding Indictment

at the arraignment at which I presided. I'm not going to

address that further.

DEFENDANT RYAN BUNDY: Okay. Do the U.S. Attorneys

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have an -- an obligation to mediate prior to court -- to a

court date?

THE COURT: Say that again.

DEFENDANT RYAN BUNDY: Do the U.S. Attorneys have an

obligation to mediate prior to a court date?

THE COURT: In a criminal matter, no.

They have the obligation to follow my orders,

however, with respect to conferral on issues before they're

presented to the Court, as a matter of the Court's exercise of

its inherent authority to manage a case.

DEFENDANT RYAN BUNDY: Okay. They don't have an

obligation to --

THE COURT: They do not.

DEFENDANT RYAN BUNDY: Okay. Are you aware that the

three U.S. attorneys have not provided me with the required

elements of the case, such as -- to name a few -- the grand

jury roll call, the grand jury roll call of my Indictment, the

record of the grand jury proceedings? And I require these

documents, or I will not be able to prepare my -- my defense.

THE COURT: You made a motion about grand jury

records on which I ruled. There isn't any pending issue before

me.

DEFENDANT RYAN BUNDY: Okay. Are you aware that I

cannot form a defense, plea, or seek any legal assistance until

I see the original of the following: An affidavit of probable

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cause required by the Fourth Amendment; a certified copy of the

statute for codes they're charging me under; a certified copy

of the session and laws recorded and -- that create the statute

and code?

THE COURT: Mr. Bundy, if you have motions for

production, you may make them. I'm not going to take the

parties' time going through these exercises.

You've been properly arraigned, you've been provided

with the charging instrument, you've had your release reviewed.

You're detained. We're not going to go over these matters

again.

Do you have something new to raise?

DEFENDANT RYAN BUNDY: Sure.

Are you aware that a man entered a plea on my behalf

without power of attorney and while practicing law, from the

bench, that the plea is not valid -- this plea is not valid,

and therefore, there is no plea entered?

THE COURT: Mr. Bundy, a not guilty plea was entered

on your behalf. It is valid.

DEFENDANT RYAN BUNDY: It was not entered by me, your

Honor.

THE COURT: It was entered by the Court. Because if

you don't plead guilty, you plead not guilty. That's the rule

of law.

So you are not guilty. You're presumed innocent,

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Case 3:16-cr-00051-BR Document 785 Filed 06/27/16 Page 96 of 103
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like all of the co-defendants, until and unless that

presumption is overcome in a public trial by jury; which, as

you know, I'm working really hard to get us to.

DEFENDANT RYAN BUNDY: Okay. All right.

THE COURT: Anything else?

DEFENDANT RYAN BUNDY: No. Thank you, your Honor.

THE COURT: You're welcome.

Mr. Medenbach had a matter to raise.

DEFENDANT MEDENBACH: Yes, your Honor. I have couple

of documents I would like to give to the Government and

yourself to review.

THE COURT: I'm sorry. You need to speak slower and

louder, please.

DEFENDANT MEDENBACH: I have a couple of documents

here I would like to have you and the Government review for

just a moment.

THE COURT: What are they, please?

MR. SALISBURY: May I approach, your Honor?

THE COURT: Yes, you may, Counsel. Thank you.

DEFENDANT MEDENBACH: I have not made these arguments

before.

THE COURT: Somehow that doesn't surprise me,

Mr. Medenbach.

We'll take a look and see what you have, okay?

DEFENDANT MEDENBACH: Okay.

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THE COURT: Okay. Well, this is pretty easy to deal

with, Mr. Medenbach. These are two copies of an oath in

different forms. You've been making arguments about my oath.

I'm not going to take up the arguments, but I will mark these

for the record. We'll put them into evidence. They'll be

there before the Court of Appeals, when you want to raise the

issue before them.

DEFENDANT MEDENBACH: Sure you don't want to initial

it?

THE COURT: Mr. Medenbach, we're not going to play

these games.

DEFENDANT MEDENBACH: Okay.

THE COURT: If you want these papers in the record, I

will direct the clerk to mark them, they'll be put in the

record, and that's all we're going to do on that subject.

DEFENDANT MEDENBACH: Okay.

THE COURT: Is there anything else besides the oath

issue you wanted to address?

DEFENDANT MEDENBACH: Nope, that's it.

THE COURT: Okay. Very good.

Now, let me get back to my list.

The next status hearing is July 6. I've adjusted the

deadline for waiver of appearances to June 27, which is a

little more time than normal because we're this late in this

month. And then the next joint status report will be due June

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30th.

I do want from the Government a current estimate of

how long the Government expects the case-in-chief to take,

assuming the trial proceeds beginning November 7 against all

defendants who have not waived speedy trial rights or who have

not taken them out of consideration with guilty pleas.

MR. KNIGHT: Three to four weeks, your Honor.

THE COURT: All right. That seems to be consistent

with what you've been estimating all along. Is that right?

MR. KNIGHT: Yes, your Honor.

THE COURT: Excuse me. Mr. Patrick?

DEFENDANT PATRICK: Is there a new date of November

7th?

THE COURT: Did I misspeak? I meant September 7.

MR. KOHLMETZ: Thank you, your Honor.

THE COURT: Crisis narrowly averted. (Laughter.)

Sorry. September 7 remains the day for jury selection to

begin.

All right. I reviewed my notes around all of your

calendaring issues. I don't think it's useful for me to recite

what all the schedule is going to be. I think I have all of

the input I need. I am going to issue an order that confirms

what we've covered on the record and sets deadlines based on

the feedback that you've given me in these reports, even as to

issues we haven't addressed on the record. And then we'll move

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Case 3:16-cr-00051-BR Document 785 Filed 06/27/16 Page 99 of 103
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forward from there. So, for my purposes, the proceeding can

adjourn in this joint session.

I do want, after everyone leaves -- except defendants

and their counsel -- to have an ex parte session. I want to

address a couple of matters with defense counsel. But I need

to be sure there's nothing else --

Yes, Mr. Barrow.

MR. BARROW: I'm sorry to interrupt, your Honor. On

one of the deadlines we talked about related to discovery,

after conferring with my colleagues, I believe we may have

overextended ourself a little bit. That is the issue regarding

documents relating to the OIG investigation.

We've conferred with Mr. Olson, and we just ask that

our response be the 24th and not this coming Friday. And

Mr. Olson indicated that he did not object to that.

THE COURT: And did I set a reply? Remind me there.

So how much -- if we adjust to the 24th, then when --

MR. OLSON: It would be the next Wednesday.

THE COURT: Very good. We can do that.

MR. BARROW: Thank you.

THE COURT: That will be incorporated. 

Yes, Mr. Patrick?

DEFENDANT PATRICK: What is the OIG?

THE COURT: The Officer of Inspector General is what

they're referring to. It is the discovery request regarding an

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Case 3:16-cr-00051-BR Document 785 Filed 06/27/16 Page 100 of 103
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investigation of Mr. Finicum's shooting. That's a discovery

issue that's been part of these reports.

DEFENDANT PATRICK: And -- and we're trying to rule

whether that's relevant in this case?

THE COURT: The defendants wish discovery of the OIG

investigation, and that is an issue the Government contests;

under which I'm taking briefing on behalf of all defendants,

yes.

MR. KOHLMETZ: Thank you, your Honor.

THE COURT: Okay. Yes, Mr. Federico.

MR. FEDERICO: Your Honor, the Court had previously

directed the parties to provide recommendation on a schedule

for the filing of final pretrial papers. That was in the joint

status report. I'm not sure if that's something the Court --

THE COURT: I was just going to be setting them. But

if you want to give me some input, I'm happy to take it.

MR. FEDERICO: Yes, your Honor. As we indicate in

the status report, the defense position is that the Government

file theirs prior to the defendants filing theirs.

But the question has also arisen. I think there are

discrepancies -- maybe even local practice -- of what that

actually means in terms of filing pretrial papers.

And I know we've had discussions with the U.S.

Attorney's Office and expressed a preference that particularly

witness lists be given as soon as possible. That will help us

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Case 3:16-cr-00051-BR Document 785 Filed 06/27/16 Page 101 of 103
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in terms of how we efficiently review discovery. So to the --

THE COURT: Well, this was what I was referring to

when I said I was going to -- based on the input you've given

me -- make my own orders. This case is different. It needs --

it needs concerted effort on a timely basis on multiple fronts.

And so I'm -- I know what your issue is. You want to

know what the Government's going to offer as soon as they know

or as soon as they're willing to commit. And that can be

staged, and I'm likely to require that.

MR. FEDERICO: Thank you.

THE COURT: Counsel knows that it's three to four

weeks. He has an idea what he's basing it on. Right?

MR. KNIGHT: Roughly, I had --

THE COURT: Okay. Good. So soon you'll be able to

share that under the Court's guidance.

All right. Other issues for the general session, for

everybody?

Okay. With that, then, the Government's excused.

All of the members of the public are excused. The defense

parties and counsel must remain. And then we'll go on the

record about that shortly.

(Conclusion of proceedings, 11:48 a.m.)

-0- 

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Case 3:16-cr-00051-BR Document 785 Filed 06/27/16 Page 102 of 103
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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 23rd day of June, 2016. 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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