BILLY J. WILLIAMS, OSB #901366 

United States Attorney 

District of Oregon 

ETHAN D. KNIGHT, OSB #99298 

GEOFFREY A. BARROW 

CRAIG J. GABRIEL, OSB #01257 

Assistant United States Attorneys 

ethan.knight@usdoj.gov

geoffrey.barrow@usdoj.gov 

craig.gabriel@usdoj.gov

1000 SW Third Ave., Suite 600 

Portland, OR 97204-2902 

Telephone: (503) 727-1000 

Attorneys for United States of America 

UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

UNITED STATES OF AMERICA 

 v. 

AMMON BUNDY, 

RYAN PAYNE, 

RYAN BUNDY, 

BRIAN CAVALIER, and 

BLAINE COOPER, 

 Defendants.

3:16-CR-00051-BR

GOVERNMENT’S RESPONSE TO 

DEFENDANTS’ MOTION FOR 

STAY OF ORDER PENDING 

APPELLATE REVIEW

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

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

Assistant United States Attorneys, hereby responds to defendants’ Motion for Stay of Order 

Pending Appellate Review (ECF No. 357). 

Case 3:16-cr-00051-BR Document 362 Filed 04/04/16 Page 1 of 5
Government’s Response to Defendants’ Motion for Stay of Order Pending 

Appellate Review 

Page 2

I. Procedural History 

Defendants seek a stay of this Court’s March 22, 2016, Order (ECF No. 334) directing 

the United States Marshals Service to transport defendants to the District of Nevada on April 13, 

2016. On March 30, 2016, defendants filed an Interlocutory Appeal and Petition for Writ of 

Mandamus with the Ninth Circuit. Defendants also filed a motion asking that the Ninth Circuit 

stay this Court’s March 22, 2016, Order (Case No. 16-30080). On April 4, 2016, the 

government responded to defendants’ motion to stay with the Ninth Circuit (ECF No. 9). 

II. The Court Should Deny Defendants’ Motion Because Defendants’ Appeal Has 

Divested This Court of Jurisdiction 

Because defendants have filed a motion to stay the Court’s March 22, 2016, Order with 

the Ninth Circuit, this Court no longer retains jurisdiction over defendants’ Motion. Although 

this Court ordinarily retains the ability to stay its own rulings pending an appeal in order to 

preserve the status quo, see, e.g., Fed. R. App. P. 8(a)(1); Newton v. Consolidated Gas Co., 258 

U.S. 165, 177 (1922), because defendants have asked the Ninth Circuit to stay this Court’s 

ruling, the stay has become part of the subject matter on appeal. To avoid potentially 

conflicting rulings, this Court should not act on this Motion unless and until the Ninth Circuit so 

directs. 

Once a notice of appeal has been filed, the district court is divested of jurisdiction over 

the matters being appealed. Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982). 

The divestiture of jurisdiction rule “is a judge made rule originally devised in the context of civil 

appeals to avoid confusion or waste of time resulting from having the same issues before the two 

/ / / 

Case 3:16-cr-00051-BR Document 362 Filed 04/04/16 Page 2 of 5
Government’s Response to Defendants’ Motion for Stay of Order Pending 

Appellate Review 

Page 3

courts at the same time.” United States v. Claiborne, 727 F.2d 842, 850 (9th Cir. 1984) 

(divestiture rule discussed in context of defendant’s interlocutory vindictive prosecution appeal). 

Relatedly, the Ninth Circuit held that the district court lacked jurisdiction to consider a 

defendant’s motion to correct his sentence after he filed a notice of appeal seeking to challenge 

that same sentence. United States v. Ortega-Lopez, 988 F.2d 70, 72 (9th Cir. 1993); see also 

United States v. Vroman, 997 F.2d 627 (9th Cir. 1993) (holding district court lacked jurisdiction 

to over defendant’s motion for reconsideration filed after notice of appeal). 

III. Even If the Court Retained Jurisdiction over Defendants’ Motion, the Court Should 

Deny the Motion Because It Fails to Adequately Demonstrate the Need for a Stay 

As defendants note, the Supreme Court has identified four relevant factors to examine 

when deciding whether a case should be stayed: (1) a “strong showing” by the applicant that he 

is likely to succeed on the merits; (2) irreparable injury absent a stay; (3) whether the stay would 

harm other parties; and (4) where the public interest lies. Nken v. Holder, 556 U.S. 418, 434 

(2009). The court may also consider “the orderly course of justice measured in terms of the 

simplifying or complicating of issues, proof and questions of law that would result from a stay.” 

Lockyer v. Mirant Corp., 398 F.3d 1098, 1110 (9th Cir. 2005). 

First, defendants are not likely to succeed on the merits of their complaints because the 

order they challenge neither falls within the collateral order doctrine nor is it the type of 

extraordinary and unlawful directive that would merit mandamus relief. This Court simply 

directed the U.S. Marshals Service to transport five Oregon defendants to the District of Nevada 

to make their initial appearances; the Court conditioned its order on assurances from the U.S. 

/ / / 

Case 3:16-cr-00051-BR Document 362 Filed 04/04/16 Page 3 of 5
Government’s Response to Defendants’ Motion for Stay of Order Pending 

Appellate Review 

Page 4

Marshal and a magistrate judge in Nevada that defendants would be returned to Oregon within 

ten days. 

Second, the prejudice defendants claim will occur if their criminal cases in Oregon and 

Nevada are permitted to proceed in tandem are purely speculative; more fatally, however, they 

are premised on an unreasonable assumption that this Court and the district court in Nevada are 

incapable of fashioning case management procedures that will adequately protect their interests 

and permit them to defend their cases. This Court has already taken significant steps to protect 

defendants’ Sixth Amendment rights in the Oregon case: the Order is narrowly tailored to a 

single, ten-day event, this Court secured a Nevada magistrate judge’s “assurance” that 

defendants will be returned to Oregon within ten days, and this Court confirmed with the Nevada 

prosecutors that the Oregon trial will proceed first. Whether defendants’ Sixth Amendment 

rights in the Nevada case will be impaired by the first appearance is beyond the scope of this 

Court’s jurisdiction over this case. The district court in Nevada should be given the opportunity 

to address defendants’ specific concerns as the needs arise. 

Third, their stay request is entirely inconsistent with their push for speedy trials in both 

jurisdictions. To the extent the Oregon codefendants not subject to the transportation order 

wish to proceed expeditiously, a stay would be contrary to those speedy trial interests as well. 

Finally, the public interest rests with the trial judge. This Court should be given the 

opportunity to manage the case as it sees fit. 

/ / / 

/ / / 

Case 3:16-cr-00051-BR Document 362 Filed 04/04/16 Page 4 of 5
Government’s Response to Defendants’ Motion for Stay of Order Pending 

Appellate Review 

Page 5

IV. Conclusion 

For the aforementioned reasons, the Court should deny defendants’ Motion to Stay 

because a duplicative motion is now pending in the Ninth Circuit; alternatively, the Motion 

should be denied in the merits. 

 Dated this 4th day of April 2016. 

 Respectfully submitted, 

 BILLY J. WILLIAMS 

 United States Attorney 

 s/ Ethan D. Knight 

 ETHAN D. KNIGHT, OSB #99298 

 GEOFFREY A. BARROW 

 CRAIG J. GABRIEL, OSB #01257 

 Assistant United States Attorneys 

Case 3:16-cr-00051-BR Document 362 Filed 04/04/16 Page 5 of 5