IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

UNITED STATES OF AMERICA, )

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

 Plaintiff, ) 

) 

v. ) April 6, 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), ) 

COREY LEQUIEU (19), ) 

NEIL WAMPLER (20), ) 

JASON CHARLES BLOMGREN (21), ) 

DARRYL WILLIAM THORN (22), ) 

GEOFFREY STANEK (23), ) 

ERIC LEE FLORES (25), ) 

JAKE RYAN (26), ) 

) 

 Defendants. ) 

__________________________________) Portland, Oregon 

TRANSCRIPT OF PROCEEDINGS

(Oral Argument) 

BEFORE THE HONORABLE ANNA J. BROWN, DISTRICT JUDGE 

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 1 of 99
 2

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: CRAIG GABRIEL 

 GEOFFREY BARROW 

 ETHAN KNIGHT 

 Assistant U.S. Attorneys 

 U.S. Attorney's Office 

 1000 SW Third Avenue 

 Portland, OR 97204 

 (503)727-1000 

FOR DEFENDANT AMMON 

BUNDY: LISSA CASEY 

 MICHAEL ARNOLD 

 Arnold Law Office, LLC 

 401 E 10th Avenue, Suite 400 

 Eugene, OR 97401 

 (541)338-9111 

FOR DEFENDANT 

JON RITZHEIMER: TERRI WOOD 

 730 Van Buren Street 

 Eugene, OR 97402 

 (541)484-4171 

FOR DEFENDANT JOSEPH 

O'SHAUGHNESSY: AMY BAGGIO 

(defendant not present) 621 SW Morrison, Suite 1025 

 Portland, OR 97205 

 (503)222-9830 

FOR DEFENDANT RYAN 

PAYNE: RICHARD FEDERICO 

 Assistant Federal Defender

 101 SW Main Street, Suite 1700 

 Portland, OR 97204 

 (503)326-2123 

 

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 2 of 99
 3

APPEARANCE: (continuing) 

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 

 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: THOMAS COAN 

(defendant not present) 1000 SW Fifth Avenue, Suite 1400 

 Portland, OR 97204 

 (503)221-8736 

 

FOR DEFENDANT JASON 

PATRICK: ANDREW KOHLMETZ 

 Raivio, Kohlmetz & Steen, PC 

 741 SW Lincoln Street 

 Portland, OR 97201 

 (503)224-1104 

FOR DEFENDANT DUANE 

EHMER: DAVID AUDET 

 249 NE Lincoln 

 Hillsboro, OR 97124 

 (503)648-3020 

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 3 of 99
 4

APPEARANCES: (continuing) 

FOR DEFENDANT DYLAN 

ANDERSON: SAMUEL KAUFFMAN 

 Kauffman Kilberg, LLC 

 1001 SW 5th Avenue, Suite 1414 

 Portland, OR 97204 

 (503)224-2595 

FOR DEFENDANT SEAN 

ANDERSON: MATTHEW McHENRY 

 Levine & McHenry, LLC 

 1001 SW Fifth Avenue, Suite 1414 

 Portland, OR 97204 

 (503)546-3927 

FOR DEFENDANT DAVID 

FRY: CELIA HOWES 

 (Appearing for Per Olson) 

 Hoevet Olson Howes, PC 

 1000 SW Broadway, Suite 1500 

 Portland, OR 97205 

 (503)228-0497 

FOR DEFENDANT JEFF 

BANTA: ROBERT SALISBURY 

(defendant not present) 330 South 1st Street 

 PO Box 1272 

 St. Helens, OR 97051 

 (503)397-9000 

FOR DEFENDANT SANDRA 

ANDERSON: TYL BAKKER 

(defendant not present) 621 SW Alder Street, Suite 621 

 Portland, OR 97205 

 (503)721-0140 

FOR DEFENDANT 

KENNETH MEDENBACH: KENNETH MEDENBACH 

 Pro Se 

 25795-086 

 MATTHEW SCHINDLER 

 Standby Counsel 

 501 4th Street #324 

 Lake Oswego, OR 97034 

 (503)699-7333 

FOR DEFENDANT BLAINE 

COOPER: KRISTA SHIPSEY 

 820 SW 2nd Avenue, Suite 275 

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 4 of 99
 5

 Portland, OR 97204 

 (503)309-9024 

APPEARANCES: (continuing) 

FOR DEFENDANT WESLEY 

KJAR: JAMES HALLEY 

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

 Portland, OR 97204 

 (503)295-0301 

FOR DEFENDANT COREY 

LEQUIEU: RAMON PAGAN 

 121 SW Salmon Street, 11th Floor 

 PMB #1195 

 Portland, OR 97204 

 (971)270-0421 

FOR DEFENDANT NEIL 

WAMPLER: AMY BAGGIO 

(defendant not present) (Appearing for Lisa Maxfield) 

 621 SW Morrison, Suite 1025 

 Portland, OR 97205 

 (503)222-9830 

FOR DEFENDANT JASON 

BLOMGREN: ROBERT RAINWATER 

(defendant not present) Rainwater Law Group 

 1327 SE Tacoma, Suite 239 

 Portland, OR 97202 

 (971)271-7566 

FOR DEFENDANT DARRYL 

THORN: LAURIE SHERTZ 

 121 SW Salmon Street, 11th Floor 

 Portland, OR 97204 

 (503)406-2136 

 

FOR DEFENDANT GEOFFREY 

STANEK: BEN ANDERSEN 

(defendant not present) 101 SW Madison Street, #9068 

 Portland, OR 97207 

 (503)860-2531 

FOR DEFENDANT ERIC 

FLORES: ERNEST WARREN, JR. 

(defendant not present) Warren & Sugarman 

 838 SW First Avenue, Suite 500 

 Portland, OR 97204 

 (503)228-6655 

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 5 of 99
 6

APPEARANCES: (continuing) 

FOR DEFENDANT JAKE 

RYAN: JESSE MERRITHEW 

 Levi Merrithew Horst, LLP 

 610 SW Alder Street, Suite 415 

 Portland, OR 97205 

 (971)229-1241 

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 6 of 99
 7

(Wednesday, April 6, 2016; 9:30 a.m.) 

P R O C E E D I N G S 

THE COURT: Good morning, everyone. Please be

seated.

THE ATTORNEYS: Good morning, your Honor.

THE COURT: Mr. Knight.

MR. KNIGHT: Good morning, your Honor. We're present

in the matter of the United States versus Ammon Bundy, et al.

This is Case No. 16-CR-0051.

Ethan Knight, Geoff Barrow, and Craig Gabriel

appearing on behalf of the United States.

Defendants are present as noted, with counsel.

Specifically, your Honor, I will note for the record that eight

defendants have executed waivers of personal appearance today

and they are as follows:

Defendant Shawna Cox has waived her personal

appearance. She is present by phone. 

Defendant Peter Santilli has executed a waiver of

appearance. 

Defendant Jeff Banta has executed a waiver of

appearance.

Defendant Sandra Anderson has executed a waiver of

appearance. 

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 7 of 99
 8

Defendant Wesley Kjar has executed a waiver of

appearance. 

Defendant Neal Wampler has executed a waiver of

appearance. 

Defendant Jason Blomgren has executed a waiver of

appearance.

And Defendant Eric Flores has executed a waiver of

appearance.

I will also note for the record, your Honor, that

evidently Defendant Geoffrey Stanek is not yet present in the

courtroom but will, however, be appearing shortly.

Thank you.

THE COURT: Well, let's confirm for the record that

as to those defendants you've named, who've waived appearances,

each of their counsel is present.

MR. KNIGHT: Thank you.

I believe they are, your Honor. I can name them for

the record, if you would like.

THE COURT: Please do that.

MR. KNIGHT: Thank you. Appearing on behalf of

Shawna Cox is counsel Tiffany Harris.

Appearing on behalf of Defendant Peter Santilli is

Tom Coan.

Appearing --

MR. COAN: Good morning, your Honor.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 8 of 99
 9

MR. KNIGHT: Appearing on behalf of Defendant Jeff

Banta is Robert Salisbury.

MR. SALISBURY: Good morning, your Honor.

MR. KNIGHT: Appearing on behalf of Defendant Sandra

Anderson is Tyl Bakker.

MR. BAKKER: Good morning, your Honor.

MR. KNIGHT: Appearing on behalf of Defendant Wesley

Kjar is Jim Halley.

MR. HALLEY: Good morning, your Honor.

THE COURT: Appearing on behalf of defendant Neil

Wampler is Lisa Maxfield.

MS. BAGGIO: Your Honor, good morning. Amy Baggio

appearing for Ms. Maxfield this morning.

THE COURT: Thank you.

MR. KNIGHT: On behalf of Defendant Jason Blomgren is

Robert Rainwater.

MR. RAINWATER: (Raising hand.) Good morning.

MR. KNIGHT: And on behalf of Defendant Eric Flores

is Ernie Warren.

MR. WARREN: Good morning, your Honor.

THE COURT: Good morning.

With respect to Jake Ryan --

MR. KNIGHT: Yes.

THE COURT: -- is he personally present?

MR. KNIGHT: I believe he is present.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 9 of 99
 10

MR. MERRITHEW: Your Honor, represented by counsel

Jesse Merrithew. He has not yet made his first appearance --

THE COURT: As I understand.

Good morning, sir. I asked that you be brought to

the courtroom so you could simply observe the proceedings.

Officially, they don't start as to you until you're formally

presented this afternoon on the magistrate judge. The record

should note he's here for the defendant.

All right. Continue with the other appearances,

please.

MR. KNIGHT: Thank you, your Honor.

Those are all of the appearances with respect to the

defendants who have waived appearance today.

THE COURT: And?

MR. KNIGHT: And with respect to those who are

present with counsel in the courtroom, your Honor, Defendant

Ammon Bundy is present with counsel, Michael Arnold and Lissa

Casey.

MS. CASEY: Good morning, your Honor.

THE COURT: You needn't stand, folks, unless you want

to.

Go ahead.

MR. KNIGHT: Defendant Jon Ritzheimer is present with

counsel Terri Wood.

DEFENDANT RITZHEIMER: (Raised hand.)

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 10 of 99
 11

MS. WOOD: (Nods head.)

THE COURT: Joseph O'Shaughnessy is not present in

the courtroom. Counsel of record, Amy Baggio, is present on

his behalf.

For the record, Mr. O'Shaughnessy is in the district

of Nevada.

Defendant Ryan Payne is present in the courtroom with

counsel Rich Federico.

Defendant Ryan Bundy is present, acting on his own

behalf in the courtroom with the assistance of Ms. Ludwig.

Brian Cavalier is present in the courtroom with

counsel Todd Bofferding.

(Hands raised by Defendant Cavalier and 

Mr. Bofferding.) 

MR. KNIGHT: Jason Patrick is present in the

courtroom with Andrew Kohlmetz.

DEFENDANT PATRICK: Good morning, Catherine and David

(speaking to audience).

MR. KNIGHT: Defendant Duane Ehmer is present in the

courtroom with counsel Dave Audet.

MR. AUDET: Good morning, your Honor.

MR. KNIGHT: Defendant Dylan Anderson is present in

the courtroom with Sam Kauffman.

Defendant Sean Anderson is present in the courtroom

with counsel Matthew McHenry.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 11 of 99
 12

MR. McHENRY: Good morning, your Honor.

MR. KNIGHT: Defendant David Fry is present in the

courtroom today with counsel Celia Howes standing in for

Mr. Olson.

MS. HOWES: Good morning.

MR. KNIGHT: Defendant Kenneth Medenbach is present

in the courtroom today acting on his own behalf with the

assistance of Matt Schindler.

Defendant Blaine Cooper is present in the courtroom

with counsel Krista Shipsey.

Defendant Corey Lequieu is present in the courtroom

with counsel Roman Pagan.

Defendant Darryl Thorn is present in the courtroom

with counsel Laurie Shertz.

MS. SHERTZ: Good morning, your Honor.

MR. KNIGHT: And that is it, your Honor.

THE COURT: All right. Thank you. So we are

assembled for the April status hearing in this matter.

Before we begin, I want to remind all present that

pursuant to the longstanding policy of the judicial conference

and consistent with that policy, the local rule of this court,

Rule 83-14, no recordings of any type are permitted within the

courthouse itself and specifically within this courtroom.

Any person who is observed seeking to record these

proceedings will be removed from the building.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 12 of 99
 13

UNIDENTIFIED DEFENDANT: No First Amendment.

THE COURT: The official record of today's proceeding

is being taken by the court's reporter. Counsel and the media

are well advised as to how to obtain a transcript of the

proceedings.

We are going to begin with addressing calendering

matters, the first of which is the scheduling of a trial date,

dates.

I sent to all counsel yesterday an agenda of the

matters we'll be addressing today, and I intend to proceed in

its order.

The first issue we need to address is whether it is

necessary for the court to set any more than one trial date.

All defendants presently are named in one Indictment. It will

be an enormous effort for all concerned to participate in a

jury trial. It will be a difficult process to select a fair

and impartial jury one time, not to mention multiple times.

There are many witnesses I understand the Government

and the defendants will want to bring to trial. The Court is

determined to exercise its discretion in a way that respects

the right to a speedy trial, one that is fair. But at the same

time, I am duty-bound to ensure that resources are not wasted,

that the burden we place on jurors and witnesses is not undue,

and that we get to the conclusion of a trial or trials as soon

as practicable.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 13 of 99
 14

So I want to hear the parties' positions with respect

to why the Court should consider setting anything but one trial

date in the first instance.

For the Government, on that point.

Mr. Gabriel.

MR. GABRIEL: Yes, your Honor.

The Government's position is that one trial date is

appropriate at this time, and September 7th should be that

trial date.

After pretrial motions are litigated, specifically

the substantive motions in June, if -- if the Court sets that

schedule, then the Government believes at that time it would be

appropriate for the Court to entertain motions to sever.

But before plea negotiations, before the parties know

what evidence will be coming in at trial, before the parties

have the full scope of discovery with respect to relative

weight of evidence and other factors that are considered in a

motion to sever, we believe that a single trial date is

appropriate.

Additionally, your Honor, we believe that the

pretrial schedule, as suggested by the Court in yesterday's

e-mail, should be undertaken by all parties together. And that

is another reason to hold the trial date on September 7.

At a later point, your Honor, the Government would be

prepared to -- to offer the Court its final opinion on whether

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 14 of 99
 15

there should be more than one trial, but at this time we

believe one trial is the correct route.

THE COURT: All right. Thank you. 

Who is addressing this on behalf of defendants?

Anyone?

MR. ARNOLD: I have a position, your Honor.

THE COURT: Yes, Mr. Arnold.

MR. ARNOLD: Mike Arnold for Mr. Bundy. We agree

with the position to the extent that we cannot come to a

decision regarding anything until we get a representation from

the Government that their Brady obligations have been met and

we've received all of the discovery. And we'll address that,

too, regarding the motion time lines. But our investigation is

incomplete, and it will probably continue after receipt of

additional discovery from the Government.

THE COURT: All right. Does anyone else have a

comment on that point?

Excuse me. Ms. Shertz was first and then Mr. Bundy.

Go ahead.

MS. SHERTZ: Thank you, your Honor.

I think part of the problem is we don't have a joint

position at this point as far as the defense.

I object to the trial date in September. I don't

think that we can have a fair trial if it goes in September.

The defense is doing everything we can to coordinate, to put

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 15 of 99
 16

our resources together, to pool resources to try to reduce the

workload on each lawyer to ensure that we each meet our

constitutional requirements to these defendants. And I don't

think it's possible by September.

I also don't think the motions deadlines that the

Court set out yesterday -- or the day before, forgive me, in

the e-mail, are realistic. We still don't have discovery. The

Government's provided discovery to the panel office that hasn't

yet been provided to the defense. And that assumes that we

don't have other cases that we also have constitutional

obligations to meet, which every lawyer in this courtroom does.

So I object to the dates, both on motion deadlines

and the current trial date as unrealistic and unconstitutional.

AUDIENCE MEMBER: Yes.

THE COURT: Counsel -- I'm sorry. Mr. Bundy, go

ahead.

DEFENDANT RYAN BUNDY: Yes, your Honor. I do

maintain my rights to a quick speedy and fair trial. However,

I cannot agree to a specific trial date and/or a motion

schedule today because I'm not being afforded the tools and

equipment to prepare my defense the same as others, being that

my incarceration is withholding me from -- from these things.

I have not yet received any discovery at all, to my person.

And -- and continually I am being inhibited from communicating

with my legal team and -- and with others, that I need to, to

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 16 of 99
 17

be able to build a proper defense. And until these tools, and

so forth, can be afforded me, I am -- I'm crippled. And so a

fair trial is not being afforded to me because of these

cripplings right now.

And so until these things can be remedied -- and I do

have a motion prepared -- or not quite prepared to address this

issue that I will be presenting to the Court. But I cannot

agree to a trial date or a motion schedule at this time.

THE COURT: Ms. Ludwig, have you had access to the

discovery?

MS. LUDWIG: I've had access -- (coughing), excuse

me, to the materials that are generally available but not the

materials that were described by Ms. Shertz as being kind of

in -- still in the stage of being in the --

THE COURT: And with respect to the material you have

had access to, have you begun a process to work with Mr. Bundy,

so that he can use those materials?

MS. LUDWIG: We're in the preliminary stages of that,

your Honor.

It's difficult because of the time limitations and

because of the lack of any kind of digital access that

Mr. Bundy would have currently.

I have been in contact with the jail. And as he

mentioned, I think he will be preparing and filing a motion

with my assistance, requesting the Court to direct the marshals

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 17 of 99
 18

to afford him more access to resources.

THE COURT: All right. Well, I'll take that up in

due course.

Yes, sir.

DEFENDANT RYAN BUNDY: Well -- and, for instance, I

could go into more detail to that. Simply not having a decent

pen or a decent paper or a chair to sit on when I write. Or

not being able to communicate. Even here, I put in a kite

for -- to have some copies made, and it was denied to me,

saying that I should go through my standby counsel. And yet I

can't obtain my standby counsel easily. And she's got

schedules such that she can't just come to me at the drop of a

hat. And so I'm continually -- continually a problem.

THE COURT: So I understand the issue, and I look

forward to hearing the motion. Remember it needs to be subject

to conferral with opposing counsel before it's filed.

All right. Who else wants to be heard on that? Yes.

MS. WOOD: Your Honor, I just want to join in what

Ms. Shertz has told the Court.

I want to make sure the Court understands that the

Government's -- I think -- earliest date for completion of

discovery or substantial discovery was around the end of May.

We don't have discovery yet, and we don't have a -- a vendor to

get discovery out to us and that is still being worked on.

So the problem that defense counsel is having is that

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 18 of 99
 19

we want to operate efficiently. We don't want to try to send

investigators out talking to people when we don't have all of

the discovery and we haven't formulated a plan.

We can't -- can't intelligently prepare motions

without the thought of maybe we're going to have to submit a

second round on the same issue because there may be information

in discovery that affects this motion. And so the problem is

we need discovery first. We need to be able to conduct a

defense investigation. We need to -- to continue to work

together, which takes a tremendous amount of time. You can

imagine, with 25 lawyers. And now the Court wants us to confer

in real time with three Government lawyers. And so --

THE COURT: No, not with three.

MS. WOOD: Okay.

THE COURT: I imagine one of you, representing one

issue, will be conferring with one of the Government's lawyers.

I never suggested any one lawyer had to confer with each and

every assistant U.S. attorney on this. There needs to be

conferral for the very reason you're talking about, however.

Because I'm confident that when there is conferral, issues are

narrowed and time -- time that would otherwise be used

inefficiently in addressing matters that actually aren't in

dispute or can be resolved by agreement would be wasted.

So conferral is an absolute requirement for every

motion unless it's an emergency, in which case I'll deal with

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 19 of 99
 20

it.

MS. WOOD: And I -- you know, I agree completely with

the Court. Again, it's just always a matter of even with two

lawyers, one for the defense and one for the Government, being

able to connect.

So all of these things take time. And -- and my

position, your Honor -- and particularly with Mr. Ritzheimer --

there's a large volume of -- of video recordings. And he was

an activist in some unrelated matters that I believe the

Government would be using as prior-bad-act type evidence in

this case. It's already been raised in connection with the

detention hearings. So those -- those recordings are perhaps

500 hours, is what we understand from the Government. And

there's no way set up yet to even figure out which ones of

those apply to Mr. Ritzheimer or to the other clients.

And so my realistic assessment of being able to be

prepared, and given the fact that I also represent other

clients and I have obligations to them and they were

preexisting -- I have not taken on any new cases since

appointed to Mr. Ritzheimer's case at the beginning of March.

So to be able to get that all done, to be effective,

I believe that -- that April of 2017 is a realistic trial date

for a 25-defendant trial.

THE COURT: Thank you. 

Yes, Mr. Pagan.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 20 of 99
 21

MR. PAGAN: Good morning, your Honor.

I -- you know, I want to maintain my client's

interest in speedy trial, but I want to speak about the motion

schedule --

THE COURT: I'm not talking about motions yet. I'm

talking about a trial date. I can adjust motion schedules. I

will be backing them up. I will be modifying them as we go.

The issue now is a trial date.

MR. PAGAN: Fair enough, your Honor.

I -- one of the things I think that we're dealing

with, your Honor --

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

MR. PAGAN: I don't think the Court is aware of

when -- the last time we were here, the Government noted that

there were 3500 police reports or pages of documents that were

given to us.

In the weeks that have followed, what we have learned

is that the Government intends to give us -- and I'm

speaking -- this is kind of secondhand, with a report from one

of the defense attorneys in conversation with the Government,

between 5 and 10 terabytes of information, including up to

500,000 pages of police reports that they say is kind of one of

the first waives.

That may be a high number. But all we know is that

we're -- the 3500 pages that we received is literally the tip

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 21 of 99
 22

of an iceberg, at this point. And so it's very difficult, I

think, for all of us counsel here to say today what exactly

we're going to be dealing with. So even the discussion at this

point about the trial date, I think, may be premature for a lot

of the attorneys here and we're kind of shooting in the dark.

THE COURT: I think you're repeating points already

made, Mr. Pagan. So I appreciate the point. If there's a new

point any counsel wishes to make, please let me know;

otherwise, I want to move on.

Yes, Mr. Medenbach.

DEFENDANT MEDENBACH: I would like to join in

everything Ryan Bundy said. All the complaints he has are the

same complaints I have. I haven't been able to get access to

anything. I would truly like to be released to have time to do

this kind of stuff. You didn't allow me to respond on our --

our hearing we had last -- on the 11th of March. But -- I'm

sure most of the people, if they get released, then we would

have more time to do all of this kind of stuff. But I'm not --

I desire a trial in September.

THE COURT: Yes.

MR. WARREN: Your Honor, I have a murder trial that

starts the first week of September, before the Honorable Henry

Cantor, Multnomah County.

THE COURT: Mr. Warren, would you e-mail to the clerk

the name of the case and the case number, please.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 22 of 99
 23

MR. WARREN: Yes.

THE COURT: Thank you.

Counsel.

MR. AUDET: Thank you. Dave Audet on behalf of

Mr. Ehmer, your Honor.

I join in the other concerns specifically raised by

Ms. Shertz.

In addition, if the trial is to start in October

[sic], I anticipate that it would extend well into October.

I have other personal and professional conflicts for

the month of October.

THE COURT: Yes, Counsel.

MR. KOHLMETZ: Just briefly, your Honor. I join in

the objections raised by Ms. Shertz and Ms. Wood. I cannot --

my professional evaluation in my client's case, I cannot be

ready for trial in September.

MR. KAUFFMAN: Sorry, your Honor. The Court may well

be aware of this, but there's another 20-some-odd-defendant

trial scheduled in September before Judge Simon.

THE COURT: Well, he told me that he was adjusting

the trial date in light of the expectation that this matter

would be set for trial in September. He told me there was a

conference in the case to be had yesterday.

Is that right?

MR. KAUFFMAN: I was not at a conference yesterday

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 23 of 99
 24

but --

MR. BAKKER: Your Honor, that was actually a

different case before Judge Simon.

THE COURT: I think he's well aware of this case and

working around it.

MR. KAUFFMAN: Very good.

THE COURT: Yes, Counsel.

MS. SHIPSEY: On behalf of Mr. Cooper, I would also

object to a September trial date. 

Your Honor, one of my concerns that I think we'll be

talking about after the status hearing is the lack of funding

for many of the CJA attorneys, which I know we will -- we will

work on. But, at this point, there are some of us who don't

have adequate funding for our investigators yet. That's in the

pipeline.

I specifically have concerns -- we would like to join

on the change-of-venue motion. There is a large venue request

in for that. I understand it's going to take several months to

get that data and be prepared to argue that motion.

But based on -- even the trial date -- I understand

the Court can adjust the motions, that the Court is wanting

that to be filed within less than two weeks. We wouldn't even

be able to file that before the trial date as it stands now,

your Honor.

I know Mr. Kohlmetz is going to talk further about

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 24 of 99
 25

it, but that is a specific example that we have concerns about.

And, therefore, we would object.

THE COURT: All right.

MR. KOHLMETZ: Your Honor, I did talk to my proposed

expert yesterday.

He -- once funding was in place, the best estimate

would be 60 to 90 days before the data was available.

THE COURT: Everyone's going to need to work on a

different timeline. This case is not a usual case. Each

defendant has asserted a right to speedy trial, and that is the

priority here.

So I am not going to treat this case as if it's any

other case. I'm not going to put it at the end of the line of

all of your other work. It is the priority, and it will be set

as soon as practical.

If there are legitimate reasons why it cannot proceed

as set, then I'll hear them at the time. I appreciate you're

all concerned with meeting your responsibilities. I would

expect nothing less. But the point of having these regular

conferences is to move the matter forward. These gentlemen who

are in custody have been in custody since January. Those

lawyers who have been on the case have been on it since

January. I've been told for weeks there are motions to dismiss

that should be made, and there isn't any reason they can't be.

They don't require evidence. They don't require discovery. If

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 25 of 99
 26

there are legal arguments to be made, they need to be made and

done now.

So we're going to move forward.

MR. BAKKER: Your Honor, I just wanted -- on behalf

of Ms. Anderson, I just wanted the record to be clear. She is

out of custody, and she is prepared to waive her speedy trial

rights. And I would second the concerns of Ms. Shertz and

Ms. Woods [sic], as far as the trial date goes.

THE COURT: Okay.

MR. HALLEY: Jim Halley, I just want to register my

concern about being able to effectively prepare for my client

under the circumstances.

THE COURT: May I say that a remark made by any

defense lawyer is deemed made by all of you.

You don't need individually each to repeat the same

point. It's been made eight times now.

Is there a new point any of you need to make?

THE COURT: Ms. Shertz?

MS. SHERTZ: I'm sorry, your Honor, I had a question.

I think that when we discussed the trial date

previously, you discussed two weeks for the defense case. The

other part of scheduling the trial date is I don't think that's

realistic. If you do the math, that's three hours per

defendant for their case.

I think these gentlemen want their day in court, and

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 26 of 99
 27

so I think it's probably more like five or six weeks for the

defense case in court by the time you include defendants

testifying and possible experts that the defense have been

conferring and discussing. So that also affects scheduling.

It also backs this case into a case that's over a year old,

that's been scheduled -- I don't know if somebody else can help

me out when we got the trial dates in the 15-44 case. But

it's --

THE COURT: Is that Judge Jones' case?

MS. SHERTZ: It's been scheduled for more than six

months, and our pretrial conference --

THE COURT: No, his case was a September trial

setting that just got moved to November.

MS. SHERTZ: And it's -- our pretrial conference is

scheduled to start November 16th. And if you add up the --

THE COURT: You know what, Ms. Shertz, if we're in

trial, then you can't be in two places at once. And even Judge

Jones would respect that. All we can do is the best we can do.

Your point is noted. Please take a seat.

Mr. Arnold, what did you want to --

MR. ARNOLD: I just wanted to point out --

THE COURT REPORTER: One at --

THE COURT: One at a time. And, sir, if you are not

going to be quiet, you'll be removed from the room.

(Speaking to Defendant Patrick.)

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 27 of 99
 28

MR. ARNOLD: You know, I don't join in on all of the

statements by defense counsel. I just want to put on the

record that we do not agree that September, at this point,

is -- is inappropriate. It's our position --

THE COURT: You made that point, Mr. Arnold.

MR. ARNOLD: I know. But your Honor said that

anything that other attorneys said --

THE COURT: No. You made a separate point that you

agreed with September.

Please add only new matter.

MR. ARNOLD: The only new matter I have is I would

like the Court to tell -- or at least instruct the Government

to get more resources to do more things, to get us the

information quicker. It's not --

THE COURT: Excuse me.

MR. ARNOLD: Yes, your Honor.

THE COURT: Behind you, there is talking going on,

and I cannot hear when this happens.

If you cannot remain silent, you'll be removed from

the room, sir. Do you understand me?

DEFENDANT PATRICK: I was just asking if there was

going to be more violent outbursts by the judge.

THE COURT: I'm asking the man to removed from the

courtroom now.

Counsel, you'll observe -- take him to a -- take him

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 28 of 99
 29

to a video, so he can watch the room -- the proceedings.

THE MARSHAL: Let's go.

THE COURT: Unless -- hold on a minute. Sir, if

you'll agree to be quiet while I try to conduct this

proceeding, you can remain.

DEFENDANT PATRICK: Excuse me?

THE COURT: If you will agree to be quiet, you may

remain. Will you be quiet?

DEFENDANT PATRICK: Is there going to be more

violence in the courtroom?

THE COURT: This is not violence. I'm trying to

conduct a proceeding.

DEFENDANT PATRICK: There was a violent outburst, and

this is violence.

THE COURT: Sir -- all right. Marshals, step away

from the defendant. I'll give him one more chance. You can be

quiet and stay, or you can keep talking and you'll leave. It's

up to you.

Now, Mr. Arnold, you were saying.

MR. ARNOLD: Yeah, I appreciate the conferrals and

the efficiency by defense counsel. I just understand that the

Government has the resources and the power available to -- I

can't speak for the efforts they're taking. I'm sure they're

doing their best with the resources they have. But they need

to get main justice involved, they need to get other resources

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 29 of 99
 30

involved. We would appreciate that.

THE COURT: Mr. Arnold, I've addressed that issue.

Anything else?

MR. ARNOLD: No, your Honor.

THE COURT: All right. 

MS. WOOD: Your Honor, just on behalf of

Mr. Ritzheimer, we would also waive speedy trial. I want the

Court to know that.

THE COURT: Ms. Baggio?

MS. BAGGIO: Thank you, your Honor.

On behalf of Mr. O'Shaughnessy, my client will not

waive his speedy trial rights, and we are requesting a trial at

the earliest possible date.

Thank you, your Honor.

THE COURT: Do you have a suggested date, other than

those that have been offered by others?

MS. BAGGIO: My original proposal, your Honor, was --

was included in the joint status report that was --

THE COURT: September?

MS. BAGGIO: That was October, your Honor.

And the Court said, no, it needed to start earlier

than that. I will work with whatever schedule --

THE COURT: Mr. Arnold, I can't hear with your mic

on. So if you're going to confer, turn it off, please.

MR. ARNOLD: Thank you, your Honor.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 30 of 99
 31

THE COURT: Say again, Ms. Baggio.

MS. BAGGIO: I will work with whatever schedule the

Court deems appropriate.

I will be prepared in September, if the Court orders

it to begin in September.

THE COURT: We'll all do the best we can do. I know.

All right. Anything else that's new on the issue of

the setting of the trial date?

There are many competing interests here.

I understand that there may be presented in the

future reasons why not all defendants should go to trial at the

same time.

There may be motions to sever filed. There may be

issues that actually materialize regarding the concerns counsel

are expressing as to an ability to actually be ready for trial,

which in turn depends upon the Government meeting its

obligation to provide discovery timely and in a manner that

allows each of the defendants to move forward. 

Today, I am going to set a jury selection to begin on

Wednesday, September 7.

And until further -- further order of the Court, that

is a trial date for all defendants.

I will take up motions to sever or motions to

continue once there is a real record where a lawyer can make a

point and establish that there isn't any way to go forward.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 31 of 99
 32

For now, the priority is the speedy trial right of

each of the accused, and I am insisting that everyone keep that

paramount.

If a lawyer, after the exercise of all due diligence,

cannot be ready, then you'll have to make that motion, and I'll

take it up at the time.

But we are going to press forward now, premising our

preparation -- all of us -- on jury selection beginning

September 7.

Now, let's move to the issue of motions.

As I already referenced, there have been points made

at both prior proceedings that there are legal motions

defendants wish to make. They need to be made, and I assume

you've been preparing them.

The idea of requiring you to file a motion that you

just think of today, tomorrow will not be reasonable, and I

would not be suggesting that. But from the very first

proceeding I was told there will be legal arguments, dismissal

arguments to be made, and that they needed to be addressed

promptly. In the status report, I was told there were four

grounds for a dismissal motion.

I need someone to tell me what those grounds are now,

so that I can take that into account as I set a schedule for

motion practice.

Who among the defendants can address that?

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 32 of 99
 33

Ms. Baggio.

MS. BAGGIO: Thank you, your Honor.

I would state that the basis of the four motions, as

referenced, was because of the potential legal arguments

related to motions to dismiss counts 1, 2, 3, and 6. And

that's why it's listed as four separate.

We are coordinating and organizing amongst ourselves

to separate --

THE COURT: What are the grounds for dismissal of

Counts 1, 2, 3, and 6 that defendants are anticipating raising

in motions?

MS. BAGGIO: Well, your Honor, I can speak to Count 1

because that is the one to which I'm assigned. And I am

researching the question of the constitutionality of 18 U.S.C.

Section 372.

I believe that the statute is ripe for a challenge as

to vagueness because it results in the criminalization of

constitutionally protected conduct, including the right to

freedom of speech, assembly, as well as to possess a firearm.

THE COURT: All right.

MS. BAGGIO: I'm also looking with regard to that as

an overbreadth challenge as well. That is the one that I'm

working on, your Honor.

I can't speak to the specifics of the other counts.

THE COURT: All right. Presumably some one of your

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 33 of 99
 34

colleagues can.

Who -- who is working the dismissal theories as to

Count 2? Anyone?

MR. ANDERSEN: Your Honor, this is Benjamin Andersen.

I have been informed -- I was in the process of researching

that. I don't have anything to present to the Court at this

time about what the --

THE COURT: Count 2 is the carrying of a firearm in

furtherance --

MR. ANDERSEN: Right.

THE COURT: -- of a crime of violence; that is, Count

1.

MR. ANDERSEN: Right, your Honor. I do believe there

could be some vagueness challenges to that, as to what is a

crime of violence, how it applies to another specific count.

Potentially, it could be overbroad, based on some of

the same issues that Ms. Baggio raised. It's constitutionally

protected, ability to possess a firearm. That could be another

issue there that could be raised, your Honor, if you're talking

prospectively.

THE COURT: Actually I misspoke. Count 3 is the

count I referenced, the carrying of the firearm in connection

with the crime of violence, which was Count 1.

Count 2 is possession of a firearm and dangerous

weapons in federal facilities.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 34 of 99
 35

MR. ANDERSEN: Right, your Honor. And I was sort of

addressing -- I apologize. I was generally addressing that

count as well, the possession of firearms in a protected

facility -- or, excuse me, in a facility, could be a grounds

for a constitutional challenge as that also hinges on the

rights of citizens to possess arms.

It could potentially be vague as to what exactly is

meant by a federal facility. There are some factual issues I

think that relate to that as well, but I believe there could be

a legal challenge.

THE COURT: All right. Count 3. Who, among the

defense counsel, was looking into a motion to dismiss on that

count?

MS. BAGGIO: Your Honor, I believe that Ms. Hay and

Mr. Olson are taking the lead on that.

THE COURT: Okay.

MS. BAGGIO: And I have some understanding, but if

the Court --

THE COURT: Well, can you tell me what you think the

gist of the concern is?

MS. BAGGIO: Yes, your Honor. The gist of the

concern is that an 18 U.S.C. 372 charge, which is the

cross-reference count in the 924(c), is not a crime of

violence.

THE COURT: Well, that ought to be a discrete

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 35 of 99
 36

argument to raise --

MS. BAGGIO: Right.

THE COURT: -- and present.

And then Count 6 is the depredation of Government

property count. Who -- who was going to be addressing

dismissal on that count?

MS. BAGGIO: Your Honor, I believe there's some

discussion among the defense counsel as to who's going to do

that, but I understand it also relates to a potential vagueness

challenge.

THE COURT: Okay. All right. Let me get a list of

the other -- so-called other group 1 motions, that the parties

had alerted me to, in front of me. Give me a moment.

(Pause, referring.)

THE COURT: I understand the venue change motion may

depend upon data that the parties will want to develop. So I

understand that may need some -- some time to put together.

Of the other motions with -- that the parties listed

in -- under the so-called group 1 and group 2, are any of them

dependent upon evidence -- or put another way, are they -- how

many of them are the kinds of motions Ms. Baggio was just

discussing?

Purely legal arguments that don't -- don't turn on

access to discovery. Whether Count 1 is the kind of crime of

violence as to which a Count 3 charge can be brought is a

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 36 of 99
 37

question of law. It does not depend at all on what the

Government's evidence is.

Counsel?

MR. KOHLMETZ: Your Honor, there are some federal

jurisdictional issues that I've been charged with looking into.

They are legal issues. They are complicated. I have asked for

funding for a law clerk to assist me with those, but I -- those

are legal issues --

THE COURT: So my point remains. The matter's been

pending eight weeks, and these legal matters are legal matters

that you're all charged with addressing. We need to go

forward.

MR. KOHLMETZ: And I am going forward, and I have a

pending final request --

THE COURT: I am going to be setting a schedule for

the filing, then, of purely legal motions. And then we'll set

another date for those motions that the parties contend depend

upon more discovery coming. And then we'll have a final round

of pretrial motions, conceptually consistent with the way I've

laid out.

Before you speak, Ms. Baggio was still on her feet.

(Mr. Arnold sitting.)

MS. BAGGIO: Thank you, Judge Brown.

As the Court described, that's why we separated them

into round 1 and round 2. And the thought is that either the

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 37 of 99
 38

round 2 motions are going to require some sort of evidentiary

hearing or they rely on our ability to review discovery prior

to be able -- to figure out whether we're going to have a

motion or not.

So when we were communicating amongst ourselves and

trying to brainstorm on what possible motions there are, it may

be that once I get discovery and look at a particular report, I

say, Okay, this is no longer a legal issue. So the point was

simply to place-hold potential --

THE COURT: Sure, I get that.

MS. BAGGIO: Okay. But that's why we separate them

into 1 and 2.

And when the Court -- I believe the Court had asked

about the possibility of shifting some of the round 2 motions

into round 1.

THE COURT: Right.

MS. BAGGIO: I would state that, from my perspective,

I would ask the Court not to do that. We did spend a lot of

time coming up with this schedule, and there was a reason why

we asked for them to be set later, your Honor.

THE COURT: Good enough.

Counsel.

MR. ARNOLD: Your Honor, additionally, some of the

conflict in a purely legal motion would include a

jurisdictional issue we have regarding Article 1, Section 8,

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 38 of 99
 39

Clause 17 of the Constitution.

There's some legislative -- quote/unquote, framers of

legislative history that was not included in some of the prior

Supreme Court analysis and -- in our opinion. And it needs to

be brought to the attention of the Court. And it is a purely

legal matter, but some of these -- actually, they're all

historical documents from the time of the framers. They're

available and referenced in at least one law -- law review

article that I found that talked about the enclave clause

versus the property clause and how -- how -- what the framers

intended.

And I believe I'm going to have to actually go and

locate at least an online database that hopefully has some of

these scanned in. But according to the law review article,

most of them were not discovered, that may change the

perception of enclave-versus-property clause analysis until

some time prior to the '90s, I think, is what the law review

article said.

So that is going to take some time. And I only bring

that up to the Court because a large portion of our time is

responding to leads and evidence and witnesses and coordinating

an investigation while simultaneously, of course, doing these

other things. So I don't anticipate that our motion to dismiss

on those grounds will be available in the first round because

of that.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 39 of 99
 40

THE COURT: Well, you're not going to have a choice.

You'll do one round of motions that are legal motions; there

will be one round of motions that depend upon discovery and

evidence; and then we're going to deal with the trial motions.

Because in order to respect the defendant's right to a speedy

trial, we need to move in an orderly way. If the Court didn't

have jurisdiction, that would need to be addressed immediately;

not eight months, five months, or six months down the road.

So you've got your arguments. You make them as best

you can, like any other lawyer does after conferral with

opposing counsel, and then we move forward.

So it sounds to me like those who would be moving

feel that April 20th, the deadline I set for the first round,

is too soon.

MR. McHENRY: Yes.

THE COURT: All right. My premise in setting April

20 as an initial deadline for those motions was in hopes that

those legal motions could be heard at the May status hearing.

If we don't file them by April 20 and have responses

on a very quick turnaround, then I likely can't hear them until

June, and that is getting very close to pushing other issues.

So I think what I will do is direct you -- I want you

all to confer about a date between the May status hearing and

the June status hearing when we could have a hearing on

motions -- on the round 1 motions, so that you're not pushed as

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 40 of 99
 41

hard as I had anticipated in the 4-20 suggestion. 

I want two different dates that you suggest, so that

I can consider the Court's availability on other matters, and

then I will back up from that date. I'll find a hearing date.

I'll back up from that date to allow the filing of all the

legal motions, filing of a response. Again, no replies because

we simply will need to move forward.

I'm inclined to limit the length of these motions for

purposes of requiring a concise explanation. And to the extent

more page length is needed for particular development, then you

would have leave to ask for it before the filing deadline.

But, again, it's a management decision I'm making in

order to ensure that we just get to the point of the motion,

whatever it is.

If the conspiracy count is not capable of being a

crime of violence, one ought to be able to say that in ten

pages of substance or less.

The standards are what they are. We don't need pages

and pages and pages of rhetoric. We need law and the point and

a response and an opportunity to be heard.

So defendants, pick your representatives. I don't --

I don't need to know who they are. Mr. Gabriel will be the

coordinator on the Government's side for identifying two

different hearing dates after the May status date and before

the June status date on which hearings can be conducted.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 41 of 99
 42

The Court is not available from May 31 to June 8, so

you cannot use those dates.

And then I want that date submitted to me by

Friday -- well, what's today? Let's say by Monday, noon.

In the meantime, you better get going on your

motions. It won't be April 20th, but you need to get going, so

that you're ready to file your law motions on the -- by the

date indicated. And then I'll adjust, therefore, on the other

motions as well. We may have to wait until May -- at the May

status hearing to -- to set a firm date on those, by which I

think it's fair to expect the Government will have resolved

most if not all of these complaints about discovery. Because,

in the end, it does rest at the Government's table to get to

the defendants the discovery they're entitled to, and we can't

simply say you have to wait weeks. It just isn't acceptable.

And I do agree with Mr. Arnold that the Government

has to provide the resources necessary to meet these demands.

And if there aren't enough, I trust, Counsel, you'll be

addressing that at your end. But you simply have to move to

put your opposing counsel here in a position where they can

proceed.

So I won't set any more motion dates yet. I do want

to move forward on a jury plan. And I think the best way to do

that is for me to propose an initial plan about the numbers and

manner and dates of summonsing, the manner in which I conceive

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 42 of 99
 43

a fair jury selection process can occur on the present

assumption of everyone participating.

So I had set in my e-mail message to you April 20 as

a day when I can get that to you. I think that's probably now

going to move out a couple of weeks, in light of your

persuading me that the legal motions need to move out a bit.

But I will be giving you an initial framework around which I

want discussion and then legal analysis about the parameters

I'm going to be setting, to the extent they're -- there may be

objections or better ideas on how to do this. I think you've

come up with some very good suggestions.

My general expectation is that we will need to

summons a very large jury pool in the first instance. We will

need to do screening for hardship and availability in the

summons process so that we can quickly and efficiently excuse

potential jurors who have a true hardship and cannot serve in

the time expected.

And then once that pool is reduced to a more

meaningful number, to summons them in groups that are

manageable, to come to court to complete a written

questionnaire; into which you clearly will have input. So that

you will have answers to a number of the questions as to the

specific jurors' backgrounds, attitudes, experiences, and the

like, before any voir dire starts.

And I appreciate that once those questionnaires are

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 43 of 99
 44

completed, we will need a break in time sufficient for counsel

to review those questionnaires, so that you can hopefully come

to some agreement about jurors who obviously should be excused

at that stage because they're not qualified or have amplified

on hardships. So that we would, again, reduce the pool, if

possible, by agreement or by court ruling.

And then once we have a pool of jurors who have

completed the questionnaire, as to whom you know their

biographical backgrounds and attitudes, we would have a voir

dire process. But it's -- given the nature of the case --

going to be a different process than the ones that happen in a

one-defendant case. It's just the way it has to be, to manage.

But that's what I have in mind.

So I'll be giving you more detail on that and then

allowing and requesting your joint feedback, so that we can get

a jury plan in place.

The reason it's necessary to do this, to start

working on this now, is if we do expect jurors to show up to

fill out questionnaires on the 7th of September, then we'll

need to start identifying that larger pool, going through the

process of the true hardship challenge and moving people

through that -- that exercise.

So let's go to the discovery issues.

MS. BAGGIO: Your Honor, excuse me.

THE COURT: Yes.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 44 of 99
 45

MS. BAGGIO: If I may, with regard to the jury plan,

in the Court's e-mail from yesterday, the Court stated that the

parties would be able to offer comments no later than April the

13th.

THE COURT: Oh, well, that was a mistyping.

Disregard.

I thought I was going to be sending it out April

20th.

MS. BAGGIO: Correct.

THE COURT: And I did -- you're right. I did say

send comments by April 13.

If -- if you all would like to send a joint statement

about things you want me to include in the first draft, that's

fine. I'll set a new deadline for that.

But I have already seen the -- the submission made in

the joint report. I think Mr. Anderson did a lot of the

background work there, and I'm hearing your points.

You are going to have a dispute over the number of

challenges, and those things. Those are legal matters we'll

take up later.

What I have more in mind right now is simply trying

to set the steps that need to happen in order that we get a

reasonable return on the summonses. We get a process in place

so that jurors fairly can be considered. But at the same time

respecting their concerns, too, about the length of time and

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 45 of 99
 46

their participation in this particular case.

So do -- do you think it would be helpful for

additional submissions, beyond the comments I've made, in

response to what was submitted?

MS. BAGGIO: I would like to have that opportunity.

THE COURT: All right. Then you take charge, with

Mr. Anderson, jointly.

I'll pick a date -- once I get through all of these

other dates -- for you to do that, and I'll include a

consideration of it.

But then it needs to be a joint submission, so the

Government would need to be looped in too. 

Did you have anything you wanted to add to that,

Mr. Andersen?

MR. ANDERSEN: Just -- thank you, your Honor. One

thing. 

In my discussions with the clerk's office, in order

to effectuate a plan that would include at least one or

potentially two rounds of questionnaires, I think that it would

be important to get any such mailing, or anything like that, to

the clerk's office -- I believe -- sometime in mid-June

potentially, or -- or maybe even earlier.

THE COURT: That's why it's on the docket for -- for

us to think about now.

I think, conceptually, the first communication to the

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 46 of 99
 47

random pool of jurors will be fairly generic. It will include

a questionnaire that addresses hardship challenges. It would

not be the substantive questionnaire.

My concerns there have to do with the need that each

juror completes the questionnaire personally, when it comes to

those substantive issues all of -- all of counsel will be

concerned with. And there's been concern when these

case-specific questionnaires are sent that people other than

the potential juror concludes them, and that isn't acceptable.

So I think probably we will have to only do screening

for time and hardship, employment issues, health issues, time

commitments, that kind of thing, in the first kind of

questionnaire; and not -- not specific to the case. And then

we'll need a -- a case-specific questionnaire that covers the

kinds of issues that are unique to this case in particular, as

well as the other issues.

Jurors' attitudes, jurors' exposure to the

information that has been publicly available about the

controversies, and so forth.

MR. ANDERSEN: I think that presents a good

framework. I would also like to alert the clerk -- or the

Court to -- I believe that the defense will be asking that the

jury pool be -- be chosen from the entire District of Oregon.

And maybe the general practice that for trials, they are --

they -- potential jurors are chosen just from the -- just from

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 47 of 99
 48

the -- from the -- the -- what is it? 

MR. RAINWATER: Division.

MR. ANDERSEN: Thank you. From the division.

And I realize we're not litigating this right now,

but this is -- I anticipate that we will ask that the jury will

be pooled from the entire state.

THE COURT: You'll have an opportunity to make the

request. Of course, it will need to be supported with

reasoning and authority and conferral with the Government's

counsel.

Actually, before we go to discovery, I did want to

address this issue that Ms. Baggio has raised repeatedly about

access to her client.

I did ask the Government look into this and see if

the issue couldn't get solved. Who -- who did that?

MR. BARROW: Your Honor, I did do that.

I reached out, as ordered, to the District of Nevada,

and just learned a little bit more about Mr. O'Shaughnessy's

status.

He is being housed in what is known as CCA7 Nevada

detention center. That is a private facility, but it contracts

solely to house federal detainees.

I -- at my request, AUSA Nick Dickinson reached out

to the marshal's coordinator with that facility to ask about

Mr. O'Shaughnessy's case. That phone call occurred this

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 48 of 99
 49

morning, so I haven't heard back about it. But I understand,

from talking to Ms. Baggio, that she was able to have some

contact with Mr. O'Shaughnessy this week.

I told Ms. Baggio that I would continue to work with

her, Nevada, and the marshals in Nevada to assure that there is

no issue with access.

Nevada told me that they don't typically have a

problem of this nature with people they have at that facility.

So they don't anticipate there being issues.

They also have not heard from Mr. O'Shaughnessy's

Nevada attorney, that she has had any issues with contact with

Mr. O'Shaughnessy. But I did make a commitment to Ms. Baggio

that this is unacceptable, and we will make sure it's not an

issue going forward.

I know she has concerns about what's happened in the

past, but I'm just focused on fixing things for the future.

THE COURT: Ms. Baggio, anything you would like to

add or any suggestion that you may want me to consider?

MS. BAGGIO: Well, your Honor, I do believe this is a

fundamental -- fundamentally important issue.

And I have been without contact with my client since

his arrest on March the 3rd until this week.

And I have made repeated attempts when he was housed

at a private prison in Arizona, as well as making requests

through our local U.S. Attorney's Office to help me set up a

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 49 of 99
 50

phone call to speak with him. I was never able to speak with

him or communicate directly when he was in Arizona.

His Rule 5 attorney was willing to pass certain

messages to him on my behalf, but obviously that's not

effective communication.

Upon his transfer to the District of Nevada and his

placement at the new private prison, I have also been unable to

communicate with him, despite repeated attempts. And that is,

again, up until this week.

I would like the record to reflect, your Honor -- and

this came up in the hearing -- I believe it was on the 22nd --

with regard to the transport order. It has been a nightmare.

It has been so difficult for me, under the constraints that I'm

operating, to be able to talk with him. This is fundamentals

of representation --

THE COURT: Ms. Baggio, your point is not disputed.

I'm trying to get to the bottom to solve it, and you've made

this issue very clear.

How did it happen this week that you got contact?

How did that work out?

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

Well, with the private prisons, in order to speak

with an inmate, the inmate tries to call you. And then you

hear that it's this person's voice on the phone. And then if

you want to speak with them, you press 1.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 50 of 99
 51

Well, at that time, the call -- it's being handled by

another private subcontractor phone company. And I have

tried -- both when he was in Arizona and then in Nevada -- to

set up this phone service so that I could speak with my client;

at exorbitant rates. It's just outrageous. And I have been

unable to do so until this week.

And what happened, your Honor -- and I think this is

important -- is that after spending a lot of time on this --

and this goes to the Court saying, you know, you guys need to

be working on motions; you need to be doing these other

things --

THE COURT: Ms. Baggio, my points are for the record

as a whole. And I will simply note that, as everyone in this

room knows, you have carried a huge share of the burden. And

it's appreciated by everyone. I understand. I'm trying to

figure out what it is I can do --

MS. BAGGIO: Understood.

THE COURT: -- to assist.

MS. BAGGIO: Thank you.

So this week, when I was able to set up a

relationship with this private company, I asked, Will my

telephone calls be recorded? And the person who set up the

phone conversation said, Send us a letter on your letterhead,

by fax or e-mail, and it will automatically no longer be

recorded. I sent it both ways.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 51 of 99
 52

At that time my client called me, and he said -- for

the first time we're speaking, your Honor. And he -- I said,

Now, I don't know this private company, but they're telling me

this isn't recorded. And he says, Well, what I'm looking at,

at the phone here at the prison, it's telling me it's being

recorded.

Later, yesterday -- yesterday, your Honor, I spoke

with someone who was actually at the prison, the prison

employee. And she was very kind and understanding. She

didn't -- she wasn't familiar with this private company that's

providing the phone service, and she didn't understand who it

was to whom I sent my letterhead.

And she said to me, No, that decision as to whether

it's recorded or not happens within the prison. So I'm not

sure who you were talking to or who's making a decision outside

the prison. She says, As far as the prison is concerned, we

will now mark it so that your cell phone and your work number

will no longer be recorded, but I can't speak to whatever else

might be going on.

Therefore, your Honor, I have made the two contacts

that I know of, in order to establish nonrecorded phone calls.

But --

THE COURT: Do you believe you had a nonrecorded

conversation with your client then, after this happened?

MS. BAGGIO: I have not spoken with my client after

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 52 of 99
 53

the communication with the prison yesterday.

THE COURT: All right.

MS. BAGGIO: So I'm supposed to speak --

THE COURT: Is there something you think I can or

should do?

MS. BAGGIO: (Raising hands up.)

THE COURT: I would say that means no at the moment.

MS. BAGGIO: Well, I --

THE COURT: If you think there's something specific

the Court can do, you have leave to contact me directly, with a

representative of the Government. Because this is a priority,

I am committed to getting it resolved.

If, for example, the transport order that I did enter

stands and if the marshal returns Mr. O'Shaughnessy to Oregon

with the other defendants who I directed could be transported,

then that's a way that you will be back in personal contact.

If something else interferes, have you considered

flying there to go speak with him?

MS. BAGGIO: Yes, your Honor. There's lots of moving

pieces, and I was hoping he might be released on the Nevada

case and that would also solve these problems. And I will -- I

will wait. I'm hoping, when I talk to him tomorrow, that the

phone call will not be recorded. If it is, I will come back to

the Court and -- with Government counsel, and address this.

THE COURT: So Mr. Barrow is charged to get this

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 53 of 99
 54

problem solved. So your first resource is he.

And if you believe a court order is needed to move

the matter forward, then you two contact me directly.

MR. BARROW: We'll do that, your Honor.

THE COURT: All right.

MS. BAGGIO: Thank you.

THE COURT: So give me just one moment here. I want

to move to the discovery issues now.

(Pause, referring.)

MR. PAGAN: Your Honor?

THE COURT: Just one minute, please. I asked for a

minute, please.

(Pause, referring.)

THE COURT: Mr. Pagan, what did you want to add

before we move to this?

MR. PAGAN: Yeah -- 

THE COURT REPORTER: Is your mic on, please?

THE COURT: Your microphone needs to go on, please,

so we can hear you.

MR. PAGAN: So item No. 5, 6, your Honor, or -- I

think No. 6, on the last issue. Regarding the tentative

schedule and the filing of motions, and the other things that

we're talking about, your Honor, I see in this -- the Court's

proposed plan here, I know some things have been moved. But

one thing I think we need to talk about here is that it appears

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 54 of 99
 55

the Court wants us to file pretrial motions in or about July.

And one of the questions I have for the Court is if

the Court would be willing, in this particular instance --

considering the unique nature of this case and the fact that we

still don't have the majority of discovery -- is moving up a

requirement on the Government to provide counsel with a

proposed exhibit list and witness list. Because I think to

require defense counsel on, you know, 500,000-plus statements,

et cetera, to kind of shoot in the dark as to what the

Government might be doing, the Court might be receiving a bunch

of motions that are theoretical --

THE COURT: Mr. Pagan, I didn't make myself clear.

The only deadlines I'm going to set, after today, on the

motions are for the first-round motions. I'm going to consider

other scheduling with respect to these other ideas.

Clearly the deadline by which a defendant needs to

move to exclude Government evidence depends upon the defendant

knowing what the Government's case is going to be. I am

limited by the Jencks Act. I'm also enabled to suspend the

trial at any point when I believe a defendant hasn't had a fair

opportunity to prepare because the Government didn't give

advance notice.

I'm going to use those parameters to move the matter

forward. So I understand the point.

MR. PAGAN: And I guess --

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 55 of 99
 56

THE COURT: I'm not making the decision today.

MR. PAGAN: Right. And I guess I'm just planting the

seed, your Honor, that we discussed.

THE COURT: It's planted, Mr. Pagan. The tree is

growing. It's getting sun, water, nourishment; unlike the rest

of us.

All right. Discovery. With respect to the

protective order that was signed after the last hearing, there

were two defendants who did not sign on to the stipulation.

Ms. Baggio was one, for the reasons we've already

noted. Mr. Ammon Bundy reserved objections. 

Last night, a very long submission, Mr. Arnold, was

made, which was really outside the scope of the scheduling

order I set at our first hearing. Your arguments should have

been included in the joint status report in a concise way. You

didn't give me enough time consider them because you went

outside that direction.

So for today, your written filings are what they are.

To me, they looked essentially repetitive of the point you made

the last time we were in court. I'm going to ask the

Government for a timeline within which they can file a written

response, and then we'll move on.

So, Mr. Bundy?

DEFENDANT RYAN BUNDY: I just wanted to add my name

to this same motion that you just spoke about from my brother

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 56 of 99
 57

Ammon. And add that new information is -- is pending and --

pertaining to that and related to an inspection of -- the grand

jury inspection.

Anyway, I wanted to make on the record that I had

my -- that objection.

THE COURT: I'll note that Mr. Bundy joins the

objection made by Ammon Bundy to the protective order that is

in place.

I do want a Government written response to the

written objections that were filed and an estimate of when that

can happen.

Mr. Gabriel?

MR. GABRIEL: We can file a response within seven

days, your Honor.

THE COURT: All right. April 13.

And then I'll take the issue of those objections

under advisement on April 13 and resolve them by written order.

Now, the discovery management issues, generally.

We've already heard many complaints that defense -- defendants

are not getting what they need, and they're not getting it soon

enough. So I need the Government to tell me what is being done

to address those legitimate concerns.

The case cannot move forward unless the Government

produces the material that the defendants are entitled to have

and does it in a way that allows defense counsel enough time

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 57 of 99
 58

meaningfully to access the material and to meet the schedule

that I'm trying to set in order to respect each defendant's

right to a speedy trial.

Who's on discovery? 

Mr. Barrow.

MR. BARROW: Thank you, your Honor. Just by way of a

status report on what has been produced, we have produced six

volumes of discovery. Volumes 1 and 2 were produced

individually to all of the defendants. Obviously, we have some

new defendants now, and we will endeavor to get them that

discovery as soon as possible.

But Volumes 3, 4, 5, and 6 were provided to the CJA

coordinating counsel, Jennifer Horvath, through a secured hard

drive. And that was done in two separate productions, the

latest being this week. In total, the six volumes of discovery

amount to 48,000 files and roughly ten gigabytes of data. Or,

I'm sorry, roughly 100 gigabytes of data.

So we do believe that is a substantial production,

but it is only the beginning. And we are continuing to produce

materials and have virtually daily meetings regarding the

discovery.

The statement that there are 500,000 documents

pending is not accurate. I don't know where that came from.

We do anticipate a large amount of data, but a lot of

that data is driven by things like videos, that -- that will be

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 58 of 99
 59

produced as soon as we can, and I think quite quickly. I would

anticipate the first of those going out in another week or so.

When we produce these hard drives to Ms. Horvath, we

simultaneously provide all defense counsel with an index to

those materials, as well as the discovery letter that describes

what the materials are.

We have always said that -- that we anticipate that

we will be substantially complete with discovery by May 15th.

As this Court well knows, there are things that trickle in

after that date. But that has always been our target date for

substantial compliance with the discovery orders.

As to the objections to the process by which the

discovery is produced, it's always been my understanding that

that process of producing the materials to Ms. Horvath was

designed to promote efficiencies both from the Government's

production of the materials, as well as the defense use of the

materials.

The vast majority of the attorneys, as far as I'm

aware, have -- haven't had an issue with that.

I have had extensive conversations with Ms. Wood

about her objections. She has requested that we provide a hard

drive directly to her. And had good conversations with why the

Government believes that that is not as efficient as

processing -- or providing the discovery through Ms. Horvath.

We both share the same goal of getting the materials

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 59 of 99
 60

to the defendants as quickly as possible.

THE COURT: Why can't the Government provide, to

those defendants who request, separate hard drives as well?

MR. BARROW: We can, your Honor, but that will delay

the process of providing the materials.

THE COURT: Tell me the specifics.

MR. BARROW: Specifically, your Honor, the Government

is under policy directives to encrypt hard drives. That means

that it isn't as fast as -- as people that don't deal with

those encryption technologies or don't deal with that policy

may believe. It is not a matter of setting a computer up to

copy a hard drive and coming back in the morning and having it

done. That has been suggested that that's what we should do.

That simply isn't how it works with our encryption policies and

our equipment.

I could probably do it at my house faster, but that's

not the way it works in the Government.

(Laughter.)

MR. BARROW: To give you an example -- 

(Laughter.)

AUDIENCE MEMBER: How much does that cost?

MR. BARROW: To give you an example, your Honor, the

estimate of production for a 50-gigabyte production for one

hard drive is a day and a half. And that, of course, involves

a lot of what we call QC, or quality control. And --

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 60 of 99
 61

THE COURT: So are you saying, in short, that it

would take a day and a half to get Ms. Wood that which you've

given Ms. Horvath?

MR. BARROW: It would take a day and a half to give

Ms. Horvath 50 gigabytes.

THE COURT: I'm asking --

MR. BARROW: It would take -- I'm sorry, your Honor.

THE COURT: Go ahead.

MR. BARROW: It would take, therefore, three days to

provide two hard drives. Ms. --

THE COURT: My point is you've already given that to

Ms. Horvath.

A day-and-a-half worth of production would generate

another drive.

MR. BARROW: It would, your Honor.

THE COURT: All right.

MR. BARROW: And then there's another request for

Mr. Rainwater for another drive.

So that, again, is an additional period of time.

THE COURT: So it seems to me that can be done.

MR. BARROW: It can be done.

THE COURT: That for those defendants who believe

they cannot get the material quickly enough through the Federal

Defender's Office, it seems to me the Government could

generate, through a day-and-a-half process, a response to each

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 61 of 99
 62

of those requests.

MR. BARROW: Let me be clear, your Honor. We can do

that.

THE COURT: All right.

MR. BARROW: But for each defense attorney that

requests that 50 --

THE COURT: Right now I've heard of two. Mr. Barrow,

stay on point.

MR. BARROW: I anticipate that there will be more.

THE COURT: Is there any reason that can't be done

this week, then?

MR. BARROW: There isn't a reason that a production

couldn't be duplicated in that time frame. But if we do it 26

times --

THE COURT: I didn't say you were doing it 26 times.

I've heard of two objections.

MR. BARROW: And I guess I would throw it out to the

defense attorneys if anyone else is --

THE COURT: We're not going to discuss here the

conferral that should have happened before.

So you're telling me for that which has been produced

to the federal defender, for each defendant who would want a

copy means sequentially one-and-a-half days.

MR. BARROW: For a 50-gigabyte production, that is

correct, your Honor.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 62 of 99
 63

THE COURT: Well, you keep qualifying what you're

saying. 

Are you saying that which you produced was 50

gigabytes?

MR. BARROW: No. An estimate of producing 50

gigabytes, which is half of what's been produced up until now,

that that process of producing a single -- let's suppose it's

Volume 7. If Volume 7 is --

THE COURT: Mr. Barrow we need to be far more

general.

That which you've given Ms. Horvath, Volumes 3, 4, 5

and 6 --

MR. BARROW: My estimate on what it would take to

provide 3, 4, 5, and 6 --

THE COURT: To one lawyer?

MR. BARROW: -- to one lawyer would be -- let's call

it about two days, your Honor.

THE COURT: All right.

MR. BARROW: And, yes, we can do that.

THE COURT: And if it was more than one lawyer, if

would be sequentially another two days, and so forth?

MR. BARROW: Correct.

THE COURT: All right. I understand your point.

Ms. Shertz.

MS. SHERTZ: Your Honor, one thing I don't know if

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 63 of 99
 64

the Government's aware of and I'm certain you're not aware of

is the panel office has -- and I want to distinguish between

the actual federal defender's client and the panel office.

THE COURT: Yes.

MS. SHERTZ: The panel office has this hard drive.

We have not been provided all of the information that's on the

hard drive.

THE COURT: I know that. That's been clear in the

materials.

MS. SHERTZ: Okay. So then when the hard drive goes

to Ms. Wood and Mr. Rainwater, they will have all of the

materials that the rest of us are still waiting for.

THE COURT: Ms. Shertz, if you would just let me

finish, I was about to ask whether there were defendants other

than Ms. Shertz [sic] and Mr. Rainwater who felt the need to

obtain the hard drive directly before waiting for its cloud

posting -- is what I understand will happen under the vendor

process that's being organized. Is there any other defendant?

DEFENDANT RYAN BUNDY: (Raises hand.)

THE COURT: One, two, three.

Okay. See? We can solve the problem.

MS. SHERTZ: There's another issue, your Honor --

THE COURT: Yes.

MS. SHERTZ: -- that may simplify things.

On a prior case involving this new encryption -- the

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 64 of 99
 65

encryption is something new that we've been facing -- I would

like to say for less than six months. I'm sure Mr. Barrow can

correct me if I'm wrong on that date. The Government's

encryption, once we get encrypted materials from them, takes

approximately forever for us to encrypt -- unencrypt on our

end. Hours to unencript sometimes.

My understanding, from having talked to Susan Cooke,

the lead discovery person at their office, is they can get

special permission from Washington, D.C., to provide

nonencrypted discovery to the defense. I would also request

that that be done in this case.

Some of the material has come to us unencrypted. It

then speeds the copying process for the Government, where it

won't take them two days to provide that material. It speeds

things on our end. And, quite frankly, a lot of what they're

providing, it's already subject to a protective order. So the

encryption seems to be belt and suspenders, and I don't --

Velcro closures on top of already complicated discovery.

THE COURT: Then you are assigned to work with

Mr. Barrow to see if this issue can be resolved by agreement.

MS. SHERTZ: Thank you. I will do so.

THE COURT: All right. So access to discovery is

complicated by the process that Mr. Barrow was describing. A

process that initially was suggested on behalf of all

defendants at the beginning of the case and one that I endorsed

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 65 of 99
 66

with the premise that it would be most helpful to the

defendants.

The bottom line is defense counsel need access to the

materials yesterday. And if the current system isn't working,

I need a suggestion to -- a solution that will get the lawyers

what they need yesterday. So I -- I can't order that which I

don't know will accomplish things.

Ms. Shertz?

MS. SHERTZ: I think, your Honor, at -- there's an

item on the agenda for the ex parte that will hopefully answer

some of these issues for you.

THE COURT: All right. I'm -- I'm willing to

facilitate in any way possible the -- this process, to the

extent I meaningfully have the authority to do so. But we

can't simply just go in circles on the issue.

Ms. Wood.

MS. WOOD: Your Honor, I think a compromise position

for right now would be to have the Government make one

additional encrypted, if it must, copy, and provide that to the

CJA office here, so that individual lawyers, such as myself and

Mr. Blomgren's attorney, could provide a hard drive there, and

just get it cloned.

It -- it -- it doesn't -- that -- that would at least

give us a copy that can go to the vendor --

THE COURT: All right. So, again, hold -- no, I'm

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 66 of 99
 67

not going to negotiate this now.

Ms. Shertz and now Ms. Wood and now Mr. Rainwater,

the three of you are the committee. You work with Mr. Barrow,

and you get this resolved. And if you need an order from me,

let me know. But we're not going to spend this time

negotiating this.

All right. So that issue -- that is to say, access

to that which is being produced -- should be addressed. And it

is a high priority. And I need to know -- I need to know that

it's addressed.

So I'll -- I want a status report by next Wednesday

from you lawyers, you three -- Shertz, Rainwater, Ms. Wood --

and Mr. Barrow, that tells me what's been accomplished and lets

me know if I need to do anything to authorize facilitating this

in any other way.

So I get the problem needs solving. You're in the

position to solve it.

Are there -- now, there's the larger question about

the other discovery not produced. You're talking about May 15.

Why -- why that long, Mr. Barrow?

MR. BARROW: Your Honor, again, I think we'll have

productions weekly or biweekly. It's just a deadline for us to

get -- you know, substantial compliance is everything. You

know, we need that time to ensure that we have uncovered every

rock and really gotten them everything.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 67 of 99
 68

We are -- as we always do -- going well beyond our

obligations because we think that's the most efficient. But it

does take time to make sure that we've contacted, for example,

every local jurisdiction who may have participated in this

event, to make sure that they didn't generate materials that

are pretty far beyond our immediate control but may be

discoverable. So that's why we're asking for the time.

THE COURT: And, in the meantime, when is your next

production going to be ready?

MR. BARROW: Your Honor, we're meeting tomorrow to

work on exactly the time frame for that. But, again, I -- we

produced it as soon as we can. So I anticipate, you know,

weekly or biweekly productions.

THE COURT: So I think it is probably provident for

me to have regular status reports on this discovery issue, and

I've now constituted a committee of defense attorneys who are

the committee to work on behalf of all defendants to facilitate

discovery problems.

Mr. Barrow, it looks like you're the --

MR. BARROW: I'm the lucky --

THE COURT: You're the one for the Government.

So what I want are weekly status reports, every

Wednesday, to let me know what's happened and whether there are

issues. And if there are issues the parties believe the Court

needs to address, I'll call a hearing to address those

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 68 of 99
 69

promptly, so that we don't wait a month before we can solve the

problem.

MS. SHERTZ: May I just inquire of how you want the

committee then to deal with the pro se defendants on discovery

issues?

THE COURT: Through their -- through their standby

counsel, who will be talking with the pro se defendants, who

have a right to make decisions and participation. But standby

counsel are functionally the conveying agent.

MS. SHERTZ: I just wanted to make sure. Thank you.

THE COURT: Yes. You don't need to go to jail to

speak to Mr. Medenbach.

MS. SHERTZ: I would not. Thank you.

THE COURT: Speak with his standby counsel, who will

speak with him and convey information back. Same with

Ms. Ludwig.

All right. Are there other discovery issues you want

me to know about right now, beyond taking them up in this

weekly status report process?

Yes, Mr. Bundy.

DEFENDANT RYAN BUNDY: I want to make an objection to

the method of information coming. I want that information to

come directly to me. I want to be directly involved with the

meetings and schedules, and so forth, rather than going through

my standby counsel. My standby counsel, as counsel, does not

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 69 of 99
 70

replace me. And I want to be able to be involved in the

communication with the other co-defendant counsels, and et

cetera. I do not want to be left out of that loop.

THE COURT: I understand that's what you want. It's

not possible. With you in custody and your having chosen to

represent yourself, there are limitations on what can happen.

Ms. Ludwig will convey everything to you, and you

will convey to her back. And she will be your agent in

communicating your decisions. She is not making decisions.

She is the vehicle of communication.

DEFENDANT RYAN BUNDY: And I do want to note that

that is a very difficult vehicle, and it is inhibiting my right

to free trial because I'm not being treated fairly and -- as

other defense counsels. And so I want to make that objection

noted.

THE COURT: It's noted, Mr. Bundy. Thank you.

All right. We have on the agenda an issue of access

for defense counsel to the courthouse. And I'm not quite clear

what the issue is. I did ask the marshal, this morning, to

observe how long it was taking per counsel to clear security.

And the report I got was minutes; two to three minutes to clear

security today when counsel came through. I don't know if the

access issue involves a place here at the courthouse where

lawyers want to be able to meet or store -- I just don't know

what the issue is.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 70 of 99
 71

So, Ms. Shipsey, would you please enlighten me.

MS. SHIPSEY: I would, your Honor. On behalf of all

of the defendants, defense counsel, there are two issues here.

One was we were requesting courthouse ID that -- to make it

easier to get in, not just for a hearing today but for trial,

anticipating that there will be -- we will have small breaks;

and, therefore, there will be a group of us trying to all get

in at the same time.

Also during trial, we're going to presumably have

carts of trial documents, just things that make it harder. So

we are asking --

THE COURT: I do have on my list the question of

finding a space in the courthouse where all defendants can

leave things secure -- securely and safely.

The issue has to do with physically where we are

going to conduct the trial. The selection of the space to

conduct the trial drives, in part, what other spaces are

available.

But it's my expectation that a courtroom in the

building, of this size, will be available only to defendants

and their defense team to leave things, to store things, to

have a secure expectation. But I have to work out access

issues, just with the locking and the like.

There are attorney rooms available on the eighth

floor, but they're intended for much smaller numbers of you,

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 71 of 99
 72

and it doesn't seem to me feasible.

So I'm trying to find a space that can be dedicated

to all defense counsel, where you'll be assured that your work

can stay here; you won't have to move it in and out of the

building, and it will be secure.

So that issue is already on -- being worked on.

MS. SHIPSEY: Thank you, your Honor. And that was

the second point. The first point I would just report on that

I did make a call on behalf of all of us whether or not we

could get courthouse ID, and we were told that was not

available.

THE COURT: I understand that was the response. I'm

also working on it. I think the issue is a different issue

when it does comes to trial in terms of the time demands on

everyone and the need to respect the jury's time and to be able

to have everybody in and moving. And so it's -- it's still an

open issue that I'm working on with the marshal.

But, as of today, it did not appear to me, from what

was reported, that any lawyer was delayed unduly at security

today.

MS. SHIPSEY: It didn't appear so, your Honor.

THE COURT: All right. Thank you very much.

All right. Let's move to the motion that is docket

No. 357, for a stay of the order I entered, authorizing the

marshal to honor the habeas corpus writs ad prosequendum for

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 72 of 99
 73

some certain of the defendants.

I wanted first to ask whether -- and I understand,

Mr. Federico, you're basically the lead on behalf of defendants

for this issue.

MR. FEDERICO: Yes, your Honor.

THE COURT: I'm wondering whether -- you or

Mr. Knight -- you have had any direction from the Ninth Circuit

as to timing or its consideration of the interlocutory appeal.

MR. FEDERICO: Your Honor, I'll speak first to that.

As part of the circuit rule, you have to alert that a

the motion is coming, emergency consideration. That has been

done. We've been in communication with all of the filings. We

have not yet heard back, though, from the circuit as to whether

or not, one, they're going to grant a request for emergency

consideration; two, any subsequent briefing schedule or when

they would seek to resolve the issue.

THE COURT: And you've made clear to the circuit that

under the existing order the marshal is authorized to start

transporting as of April 13?

MR. FEDERICO: Yes, your Honor.

THE COURT: All right. Have you heard anything else?

MR. KNIGHT: Nothing different, your Honor, no.

THE COURT: All right. Mr. Knight, Mr. Federico

argues the district court lost jurisdiction to even consider --

No, you're the one arguing that.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 73 of 99
 74

Let's go back. Sorry.

MR. FEDERICO: Yes, your Honor.

THE COURT: You're arguing -- the Government was

arguing that the district court did not have jurisdiction to

stay its order because, with the interlocutory appeal, it was

the Government's position that substantively that matter has

now been divested.

You're relying on the Federal Rule of Appellate

Procedure 8 and its explicit contemplation that the district

court would consider the rule. Right?

MR. FEDERICO: Yes, your Honor. That is certainly

the starting point.

Also, I note I had a reply that was drafted that --

and then I saw the Court's e-mail that replies will not

typically be permitted. I only state that because I am

obviously prepared to orally state some case law and talk about

the Government's --

THE COURT: Let's start about jurisdiction first. Go

with that point. Then I would like to hear from Mr. Knight on

the jurisdiction issues. And then we will go to the merits, if

I'm persuaded I have the authority to consider this motion.

MR. FEDERICO: Yes, your Honor. 

Regarding jurisdiction, the Court is correct.

Primarily, relying first on Federal Rule of Appellate Procedure

8(a), saying the district court in fact has priority over

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 74 of 99
 75

jurisdiction. And I believe the Government's response somewhat

mischaracterized what the defense had filed; both in the Ninth

Circuit.

They said that we -- once we filed the notice of

appeal, the district court had been divested of jurisdiction

because we also sought a stay directly with the Ninth.

What we did with the Ninth was filed for a request

for emergency consideration and then stated, also, that we were

simultaneously filing for a motion to stay with the district

court. Those were filed on the same day.

And then said to the Ninth Circuit that if the

circuit court determines that it requires additional time to

resolve the matter and the stay hasn't been issued, then we

would request the Ninth Circuit to stay the district court

order.

In other words, the conditions are that if the

district court has not stayed it, the Ninth Circuit has said

they need more time to resolve, then we would ask the Ninth

Circuit to consider a stay. 

Which is different than what -- the Government's

response in saying that we had just gone to the Ninth and

sought a stay directly.

So we believe under the -- the rule of appellate

procedure, the district court has, in fact, then priority

jurisdiction.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 75 of 99
 76

And I think also, your Honor, the cases cited by the

Government don't stand for the proposition that really what

we're asking the Court here is a procedural matter and not a

substantive matter. Because the case law they provided -- for

example, the Griggs versus Provident Consumer case from 1982.

And they said that the Court is now divested of jurisdiction

over, quote, the matter as being appealed. Well, the matter

being appealed is the transport order. We haven't asked the

Court for reconsideration of that order.

And -- and, likewise, other case law -- for example,

there's a case In Re Thorp, from the Ninth Circuit, from

1981 -- the citation for that, your Honor, is 655 Federal 2d

997. It says that the matter on appeal is a different

question, and the Court can consider those matters that are,

quote, in aid of the appeal, such as procedural matters. And

that's the way we view the current motion to the Court.

The other cases cited by the Government,

Ortega-Lopez, held that the Court lacked jurisdiction -- excuse

me, the district court lacks jurisdiction to correct a

sentence. Again, that's a substantive matter.

Likewise, the Vromen case, in that case it was the --

the Court held the district court lacked jurisdiction to

consider a reconsideration of probation revocation. Again, a

substantive matter. So we distinguish the jurisdictional

questions on that ground.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 76 of 99
 77

We believe the district court retains priority

jurisdiction to resolve the procedural question for now. And,

again, the substantive question as to whether or not the

transport should go forward is certainly a matter that we

concur with the Government is properly now left to the

appellate court.

THE COURT: Thank you, Mr. Federico.

Mr. Knight, on jurisdiction.

MR. KNIGHT: Thank you, your Honor.

With respect to jurisdiction, I think as a threshold

matter the parties agree what the rule is and what the cases

are. The difference is an interpretation of the facts.

And in this instance, to say that there's a

procedural and substantive difference is a distinction without

a difference. The procedure is the substance of the appeal.

The very idea that the basis of the appeal and the arguments

underlying the appeal relate to the transport itself and to the

stay and the attendant concerns about the deprivation of rights

with the movement of the defendants is the same as the

procedure. So there's no difference. So, to split hairs and

to claim that really there is a procedural issue before the

Court and a separate substantive issue now contained in the

appeal, we believe, is inaccurate.

And the cases that have been cited, we agree with.

And we would argue that their holdings do in fact bind this

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 77 of 99
 78

Court and properly lay a factual and legal foundation for the

conclusions set forth in the brief; and that is, by virtue of

the arguments the defendants have made about the transport of

these defendants, this Court has been divested of jurisdiction

on this narrow issue.

THE COURT: All right. Well, let's move to the

merits argument, so that I have a full record here before I

have to decide this issue.

The Government filed its opposition on the merits.

Your primary grounds are ones that were actually argued in the

first instance, Mr. Federico, in opposition to the order.

So if there's something else you wanted to add or

emphasize, I'll hear from you and then from Mr. Knight.

MR. FEDERICO: Thank you, your Honor.

Yes. The starting point, I think the parties both

agree that the Nken factors from the Supreme Court would apply

to the motion to stay. I won't rehash the arguments, but will

sort of give an oral reply to the Government's response. 

The first factor is the likelihood of success on the

merits. In fact, I don't think either party correctly -- or I

shouldn't say "correctly," but fully cited some case law that I

think gives a little more detail as to what that means.

For example, a case called Leiva-Perez v. Holder.

The citation for that is 640 Federal 3d 962. That is a Ninth

Circuit case from 2011. That case, the Ninth Circuit openly

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 78 of 99
 79

acknowledged that there is uncertainty as to the exact degree

of what the likelihood of success has to be. And it stated

that the test was a substantial case for relief on the merits.

So what is a substantial case? I believe that in

this case we've easily met that threshold. I mean, as this

Court acknowledged, when the issue was brought to the Court's

attention, this is a very unusual circumstance with these two

complex trials simultaneously and these are some very weighty

cons -- constitutional rights at issue.

And so I'll just stand on the briefs that have

already been filed, as to whether or not there is a substantial

case for relief. But I just wanted to invite the Court's

attention to what the Ninth Circuit has said that standard

means.

As to the second factor of the irreparable injury,

again, the Court's order originally was that those -- any

injury or harm was premature. The Government's response, they

called it, quote, purely speculative.

I would say that the same Ninth Circuit case I just

cited also detailed that this particular factor of irreparable

injury is very individualized. It's very case specific. And I

think that is important here because of the unusual nature of

these circumstances. And -- and I would concur that we're

seeking to prevent a future infringement of rights. So,

inherently, the process is forward-looking.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 79 of 99
 80

But here, I think there is also some case law that's

informative, that states that when you bring the matter of

constitutional rights infringements to the Court's attention,

also it's telling as to what the review is. 

For example, if you raise constitutional issues

pretrial versus post-trial -- and the analogy I'll give here is

Brady. The Ninth Circuit, in the Price case, at 566 Federal 3d

900 -- and that's a 2009 case -- said that on -- on appellate

review, if you claim there's been a Brady violation, you have

to make a showing of materiality. But when you're claiming

that same violation before it has owe -- the trial has been

adjudicated, you don't have to show materiality. I think

that's again -- illustrates that when you bring the matter, in

terms of constitutional rights and infringement, that -- a

decision is made as to what -- the proper showing. Because we

have argued and would argue that the defendants need not show

prejudice at this point because it's a structural issue.

And I'm also going to defer to Mr. Arnold. I think

he has a comment regarding prejudice, as well.

In the Government's response, they stated that we

were not resting -- or, excuse me, that the terms of the

irreparable injury factor, that we're resting on an

unreasonable assumption that this Court -- the district courts

are incapable of fashioning, sort of, case management

procedures to protect the rights. And I think that, again,

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 80 of 99
 81

sort of mischaracterizes what the harm is we're articulating. 

In the opening brief that we have provided as an

attachment to the Court, we stated there is a body of case law,

the Sixth Amendment -- particularly, rights to effective

assistance of counsel -- that talks about basically breaks in

contact between defendants and lawyers -- and sometimes in as

short as 17 hours -- is found to be a violation of the Sixth

Amendment.

And so, really, as we said in the motion, we see

this -- or, excuse me, the opening brief in the Ninth Circuit,

is that the Government in the two districts within the

executive branch from the Department of Justice has asked the

Court to sort of referee and facilitate this process, which the

courts are capable of doing. But, on the other hand, the

defendants are the ones who suffer the harm from that. 

And there's a concern here, in terms of harm, that

what is likely to happen is if they're transported to Nevada,

there's going to be substantial litigation time spent on who is

where and when, and what they're going to be doing there.

Because, as we've been discussing all morning, this is very

difficult and challenging to come up with a case management

order here, with the number of defendants. And I would just

imagine -- it's not even speculative -- that Nevada is going to

face the same problem.

Lastly, your Honor, regarding the third and fourth

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 81 of 99
 82

Nken factors which, as the parties briefed, merge together

between the Government and the opposing party. And those

factors are the harm to the other party and the public

interest.

The Government stated in its response that its motion

for stay is inconsistent, and the defendants are being

inconsistent with their demand for speedy trial. And we would

state the opposite is true because what we are trying to do is

keep them here in Oregon, to keep their case on track.

And so that there is in fact -- trying to prevent any

events, such as a transport, that would interfere with their

case preparation in this case, here in the District of Oregon.

So not only do we see no inconsistency with the

demand for speedy trial, we believe a stay of the order in

seeking the appeal of the transfer order is in fact consistent

with the demand for speedy trial.

And so, your Honor, if I may also -- I just mentioned

a moment ago, I defer to Mr. Arnold. I think that he had

some -- a point he wanted to make regarding potential

prejudice.

THE COURT: Certainly. 

Mr. Arnold.

MR. ARNOLD: Thank you, your Honor.

Regarding the issue of prejudice, my client has not

been transported yet, so he doesn't have any actual prejudice.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 82 of 99
 83

But I do have proof that it's more likely than not that if he

is transferred, there is likely to be prejudice.

I have an affidavit that we received after hours last

night, and it is essentially from a woman named Deborah

Reynolds. And she has been in contact with Peter Santilli --

who was transported previously -- on the phone.

And I have the affidavit. But I was just going to

read portions -- or read it by way of proffer, or I could give

it to the Court.

THE COURT: Who is Deborah Reynolds?

MR. ARNOLD: Deborah Reynolds is the significant

other and co-host of The Pete Santilli Show.

THE COURT: All right.

MR. ARNOLD: She's in regular telephone contact with

Pete Santilli, and my understanding -- from speaking to her on

the phone -- regular contact with Pete's attorney, Tom Coan.

And she had received specific information from

Mr. Santilli, over the phone, that she conveyed to me. And

then we had it reduced to a declaration, regarding his

deprivation of access to counsel while he is in Nevada.

And with the Court --

THE COURT: Since the last hearing, he's been

transported to Nevada. Is that what --

MR. COAN: He was transported on Tuesday, your Honor.

THE COURT: Thank you. That point wasn't clear for

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 83 of 99
 84

the record.

Go ahead.

MR. ARNOLD: Sorry, your Honor.

THE COURT: All right. 

MR. ARNOLD: Thank you. Ms. Reynolds states that she

spoke to Mr. Santilli approximately three days prior to signing

this, which would have been the -- the -- the 2nd.

And he told me -- he told me that he could not

believe what's happened since he had been in Nevada. The first

couple of days he thought he would just deal with the

conditions of incarceration, but found himself in a cell 23

hours a day.

And, your Honor, I'll just point out, by way of

proffer, this is a similar experience that they -- many of

defendants -- if not all of them -- saw here in Oregon. That

there is a -- a jail policy at Multnomah County jail to do this

secluded treatment for 23 hours a day, basically, in order to

essentially process them.

I talked to Captain Peterson, at the jail. And it

wasn't anything specific to these defendants. It's just what

they claim they always do in order to do their intake process

for two weeks.

So, in essence, they're getting a solitary

confinement twice over. They're being re-intaked. Apparently

at least Mr. Santilli is, down there. And the problem with

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 84 of 99
 85

that is he is essentially in lockdown. And that this is --

again, back to the proffer. That means he is only allowed to

come out of his cell when there are no other inmates present.

This means that he's only allowed to come out of his cell late

at night, 11:00 p.m. local time. That means that he can only

contact his attorneys during that time. It's my understanding

he eventually -- after the phone call I had with Ms. Reynolds,

he was able to reach out and speak to Mr. Coan during business

hours, and I don't have any other details about that.

At the time, it prevented him from contacting his

attorney in Oregon and also prevented him from having family

time, and everything else.

And we know, by way of proffer from Mr. Bundy's

experience in Oregon, during that one-hour time he has to

shave, he has to clean his cell, he has to do personal

business, he has to call his family. And then, you know, he

can shower and then find time to, you know, do -- do all of

these personal things that -- you know, cleanliness, that's

sort of a, you know, natural right to do. And, also, if you

transfer that obligation -- the personal obligations to the

Nevada situation, you also have to call your lawyer.

THE COURT: So you're saying this exists for the

first 24 hours?

MR. ARNOLD: No. It was two weeks here in Oregon.

And apparently it was -- if it was last Tuesday through

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 85 of 99
 86

Friday -- or Tuesday through Saturday. So Tuesday, Wednesday,

Thursday, Friday -- five days in Nevada.

DEFENDANT AMMON BUNDY: My dad and brother are

still --

MR. ARNOLD: Yeah. Hold on. 

By way of proffer, my understanding, from speaking to

Carol Bundy and from speaking to her -- or Mr. Cliven Bundy's

attorney, he's been in some sort of similar conditions for over

a month.

THE COURT: All right.

MR. ARNOLD: Apparently, since -- just by way of

candor, also since he began raising these issues with the jail

guards, he's been allowed out of his cell for two hours a day;

apparently starting on Saturday, is my understanding. He was

able to apparently talk to his Oregon attorney during that day,

which I believe would have been -- what day is today? Would

have talked to his attorney on Monday.

The guards -- this is hearsay within hearsay. But

the guards personally told Pete, who told Mr. Reynolds -- or

Mrs. Reynolds, that it was a hardship on jail staff to take the

efforts necessary to keep him from other inmates while in

custody.

So it appears that there's a suggestion that they're

doing it, you know, for the purported safety of the individual

defendants.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 86 of 99
 87

And what I would ask -- in addition to the stay --

and the Court asked what could be done in relation to

Mr. O'Shaughnessy. I think all of the defendants would benefit

from a proactive approach to -- to protecting their rights that

are -- could potentially be inhibited based upon this

information.

We would ask that the Court require the Government to

show cause through an evidentiary hearing, where the Court can

actually evaluate the condition of the facilities by way of --

you know, we can Skype it or telephone call, or whatever. Have

the warden of these jails, have the -- have the main jailer

that's helping with Mr. Santilli, we can flesh out factually

what is actually occurring and the Court can inquire, as

opposed to the -- you know, the executive branch, through the

U.S. Attorney's inquiring.

THE COURT: Thank you. 

Mr. Coan, did you want to add anything to that?

MR. COAN: What I can add to that, your Honor, is I

will say Mr. Santilli's being held at the Anderson County

Detention Center, just outside of Las Vegas.

I cannot make any calls in to him. He can only make

calls to me. So my communications with him are, you know, not

good because I don't know when --

THE COURT: Has he been -- I'm sorry.

MR. COAN: I don't know when he's going to call.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 87 of 99
 88

THE COURT: Has he been appointed counsel there?

MR. COAN: He was appointed counsel. That -- that

attorney, as of yesterday, had not visited him.

THE COURT: All right. As yet.

MR. COAN: As of yet.

THE COURT: All right. And just to refresh my memory

of the order that is the subject of this interlocutory appeal,

it also anticipated that if that order was exercised according

to its terms, Mr. Santilli would be returned to Oregon once

those who were transported were returned.

MR. COAN: There was an alternative plan, your Honor.

We had hoped to have a detention hearing or a review of

detention down in Las Vegas before the 13th. Because it's my

understanding that if the Court doesn't stay this order, these

defendants, here, will be transported down on the 13th. The

marshals may be able to transport Mr. Santilli back up here at

that time. If he hasn't had his review of detention hearing at

that time, it will be the 23rd.

THE COURT: All right. So I understand the point

about prejudice, having to do with the manner of confinement in

Nevada; the concerns the defendants have who are the subject of

this order.

So were there any other points before I hear from the

Government?

MR. ARNOLD: My client reminded me that -- another

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 88 of 99
 89

issue that was brought to our attention was the lack of --

traveling with the legal documents.

THE COURT: I addressed that at the last hearing.

MR. ARNOLD: Right. And I believe Mr. Coan --

MR. COAN: I can also add to that, your Honor. I

was -- the marshals here tried to accommodate. Mr. Gabriel

told me that he -- Mr. Santilli would be able to take with him

up to a large envelope of documents with him.

I gave him an envelope to secure some discovery

documents, that he could look at in his travels. When he

actually made the travel, he was told he couldn't take

anything. So those have all been returned to me, and he

doesn't have any discovery materials down there.

THE COURT: They are back in your possession?

MR. COAN: Yes.

THE COURT: Thank you. All right.

Mr. Knight.

MR. KNIGHT: Thank you, your Honor.

With respect to the merits, I'll focus only on the

second factor laid out in the parties' briefing, and the

Government will rely on its briefs for the other factors. And

that factor is whether or not there is indeed irreparable

injury absent a stay. And, again, I get back to the language

"irreparable injury." 

What has been proffered to the Court today and what

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 89 of 99
 90

already exists in the record does not amount to what would

constitute an irreparable injury. It is, by and large,

speculative.

And I want to speak specifically, right now, of

course, to the concerns about confinement in Nevada because the

harm has to be attendant, of course, to the Court's order

itself. Not just general confinement conditions here in the

District of Oregon, but really as they relate to Nevada.

Nothing that has been proffered would suggest there

is an irreparable injury or such a severe injury to the

defendant's Sixth Amendment rights such that his rights -- in

this case, Mr. Santilli's rights -- have been impaired.

It was conceded that Mr. Santilli had some contact

with Mr. Coan. And I can't speak to the efficacy of the

procedures in the jail there. But the bottom line is the

record, as it stands right now before this Court, suggests that

Mr. Santilli is still receiving representation as a result of

the order that's already been effectuated. And there is

nothing to suggest -- going forward with these other

defendants -- that the District Court in Nevada or the Marshals

Service can't ensure that they will have access to counsel or

legal materials, going forward. And that seems to be the

issue -- the narrow issue as presented by these new arguments

today.

And with that, your Honor, the Government will rest

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 90 of 99
 91

on the existing arguments in the brief, and supplement it only

with the fact, again, that the arguments about harm appear to

be purely speculative. And even if accepted at face value,

don't rise to the level of irreparable injury.

THE COURT: All right. Give me a moment, please.

(Pause, referring.)

THE COURT: I have taken seriously the arguments

defendants raise on all grounds.

I conclude that the question the Government has

raised as to the Court's jurisdiction to consider the

defendants' motion to stay is, in any event, moot because I

don't find the stay as warranted when I consider all of the

factors that I'm required to consider.

It is and remains a most unusual situation the

defendants are facing here. The Court's authority over this

prosecution does not extend to controlling the manner in which

a co-equal court in Nevada chooses to control a proceeding

involving some of the same parties.

I tried intentionally to make the order I did enter

narrow, time specific, and limited to the one anticipated

transport that I've authorized. And I believe, in doing so, I

have rendered inarguable, really, the argument of irreparable

injury. The whole format and extent of the order is that

defendants will be away for a period of about ten days. And I

don't find under any of defendants' arguments that that in any

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 91 of 99
 92

way is an injury to their constitutional rights: The right to

access to counsel here; their right to speedy trial here; their

right to due process here.

The extent to which they wish to challenge -- if my

order stands -- in Nevada the impact of that order on them

there, that's a matter for the Nevada court to address.

It's clear that this Court does not have any

authority to address the arguments about the manner of

confinement or access to counsel when defendants are confined

in another judicial district.

It's clear the defendants who are the subject of this

order do not want to go to Nevada, and I have -- and I

certainly appreciate their need to be here and to move forward

on the schedule that I'm trying very hard to implement so that

we do commence a trial at what I believe is the earliest

feasible time, beginning with jury selection on September 7.

I don't believe there's any showing, then, of a

likelihood of success on the merits here because the fact that

it's an unusual case doesn't -- doesn't equal a substantial

case for relief on the merits; the narrow tailoring of the

order itself minimizes any risk of a constitutional violation;

and ten days is just that, ten days. 

I don't believe any injury the defendants anticipate

is irreparable. I don't believe that there is any significant

Government or public interest in not allowing the District of

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 92 of 99
 93

Nevada to have the defendants for this limited period of time.

And more pract -- pragmatically, I believe I do need the

confirmation by the Ninth Circuit Court of Appeals that this

order should stand.

And if I'm wrong on these analyses, then it's

important that that decision get made by a higher court now for

the future progress of this case and the one in Nevada. If --

if the Ninth Circuit Court of Appeals believes the defendant

should not be transported, they know now of the urgency of the

matter.

I know Mr. Federico and counsel for the affected

parties will be contacting the court, the Ninth Circuit Court

of Appeals, promptly after this session today, to let them know

that I did not stay the order. And that they will need to

address it or the marshal will in fact transport. The order

remains in effect until an authority overrules it or says it is

no longer in effect. And I do not intend to do that here.

So, therefore, I don't need to resolve what I think

is an interesting theoretical question about jurisdiction.

Because if I did have jurisdiction, I would deny the motion to

stay on the matters for the reasons indicated; and if I don't

have jurisdiction, then the question is moot.

So I look forward to the Ninth Circuit providing all

of us with controlling direction on this problem. I do not

anticipate the issue would arise again here in Oregon, as I've

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 93 of 99
 94

already indicated, and so I'm denying the motion to stay.

Mr. Bundy.

DEFENDANT RYAN BUNDY: Yes, your Honor. I

respectively [sic] take exception to your ruling. I do feel

that there would be irreparable -- irreparable damage. As far

as I know, to date, there is no method and science to move back

in time the time that we would lose in transport, in -- in

booking in and out, et cetera, et cetera; as time that would be

lost on both cases, for both trials, that would not be

irreparable.

And, you know, you -- you, as a judge, do have the

power and the authority to -- to stay that motion, to move us.

THE COURT: Well, Mr. Bundy, I didn't say I didn't

have the power.

DEFENDANT RYAN BUNDY: I understand.

THE COURT: I said, on the merits, I don't believe

it's warranted here.

DEFENDANT RYAN BUNDY: I understand.

MS. LUDWIG: Is that it?

DEFENDANT RYAN BUNDY: Say that again? 

(Pause, Ms. Ludwig and Defendant Ryan Bundy 

conferring. Ms. Ludwig and Defendant Bundy sit.) 

THE COURT: You're -- all of the defendants affected

by my original order have an exception to the ruling just made. 

As I expect, Mr. Federico will be in touch with the

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 94 of 99
 95

Court of Appeals promptly to see if they will provide expedited

guidance on whether a ruling on any issue is forthcoming before

the close of business on April 12.

For the defendants who are affected by the order,

remember that if it is not lifted by the Ninth Circuit, Counsel

should take steps to ensure that the defendants' papers are

safeguarded in a way that protects them while they are away, if

indeed they're allowed to be away.

Mr. Medenbach -- I wanted to address -- filed a

motion to reconsider. I need to find it.

An order I made denying his motion to dismiss. I

raise it only because it came in out of the order of the joint

status report. I do believe the Government should file a

response to it.

Mr. Gabriel, are you --

MR. GABRIEL: Yes.

THE COURT: -- on deck for that?

MR. GABRIEL: Yes, your Honor, and we can do that

within seven days, again.

THE COURT: All right. Mr. Medenbach, good morning.

DEFENDANT MEDENBACH: Good morning.

THE COURT: So I'm going to get the Government's

response.

I've read all of the materials you've submitted, and

I'll make a ruling once I hear the Government's written

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 95 of 99
 96

argument, which you'll have. I don't need a reply because most

of what you've written to me is what you already said in court.

I understand the points. But you've made them now. You have

been clear, for the record.

So the motion will be taken under advisement when the

Government files its response.

DEFENDANT MEDENBACH: Can I talk about some other

stuff?

THE COURT: I'm talking about the motion you filed,

asking me to reconsider the motion to dismiss ruling that I

previously made. That's what I'm addressing right now.

DEFENDANT MEDENBACH: Okay.

THE COURT: Do you understand what I just said about

that?

DEFENDANT MEDENBACH: Yes.

THE COURT: All right. Was there something else you

wanted me to address right now?

DEFENDANT MEDENBACH: Yeah. Is this a good time to

do it or --

THE COURT: Well, I'm asking, do you have something

else, yes or no?

DEFENDANT MEDENBACH: Yes. When we were in court on

the 11th, we had a discussion about the oaths of office.

And under 28 U.S.C. 453, it states: 

Each justice or judge in the United States shall 

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 96 of 99
 97

take the following oath or affirmation before 

performing their duties of his office. 

I was wondering if I could get some verification that

you've taken this oath and also the one that we -- you took the

oath to understand -- to support and defend the Constitution of

the United States.

THE COURT: Well, I publicly took that oath in this

courthouse in November of 1999, and I don't see any need to go

beyond that, sir. So, no.

DEFENDANT MEDENBACH: How about 28 U.S.C. --

THE COURT: I'm not going to address the oath issue

any more.

DEFENDANT MEDENBACH: Okay. I'm just asking.

THE COURT: And I'm just answering; that we've

covered this on many occasions now.

DEFENDANT MEDENBACH: We never --

(Audience members speaking.) 

THE COURT: Quiet in the back of the room or step

outside. 

Mr. Medenbach, I'm not going to reconsider this oath

issue.

I'm a judge of the United States District Court for

the District of Oregon.

You need to move on.

DEFENDANT MEDENBACH: Well, if you haven't taken this

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 97 of 99
 98

 

oath --

THE COURT: Sir, if you have any other issue to

raise, raise it now; otherwise, take a seat.

DEFENDANT MEDENBACH: (Sitting.)

THE COURT: All right. Are there any other matters

in the public record we need to take on before I excuse the

prosecutors and all of the members of the public and take up ex

parte issues with defense counsel and defendants? Are there

any other matters?

For the Government?

MR. KNIGHT: No, your Honor.

MR. GABRIEL: Not for the Government, your Honor.

THE COURT: I don't see anyone else standing on

behalf of the defendants. So at this time all -- everyone

needs to leave the room unless you are one of the named

defendants or one of their assigned counsel or court staff.

(Conclusion of proceedings.)

-0- 

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 98 of 99
 99

Certificate

--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 16th 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 

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cr-00051-BR Document 736 Filed 06/20/16 Page 99 of 99