BILLY J. WILLIAMS, OSB #901366 

United States Attorney 

District of Oregon 

ETHAN D. KNIGHT, OSB #992984 

GEOFFREY A. BARROW 

CRAIG J. GABRIEL, OSB #012571 

Assistant United States Attorneys 

ethan.knight@usdoj.gov

geoffrey.barrow@usdoj.gov 

craig.gabriel@usdoj.gov

1000 SW Third Ave., Suite 600 

Portland, OR 97204-2902 

Telephone: (503) 727-1000 

Attorneys for United States of America 

UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

UNITED STATES OF AMERICA 

 v. 

AMMON BUNDY, et al., 

 Defendants.

3:16-CR-00051-BR

GOVERNMENT’S RESPONSE TO 

DEFENDANTS’ MOTION TO DISMISS 

COUNT 3 OF THE SUPERSEDING 

INDICTMENT (#465)

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

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

Assistant United States Attorneys, hereby responds to defendants’ Motion to Dismiss Count 3 of 

the Superseding Indictment (ECF No. 465) and its supporting Memorandum (ECF No. 466), 

filed by defendant Fry on behalf of all defendants named in Count 3. 

Defendants—many of them armed—took over the Malheur National Wildlife Refuge 

offices preventing federal employees from performing their jobs. As a consequence, defendants 

have been charged with both conspiring to prevent by force, intimidation, or threat federal 

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employees from discharging their duties, in violation of 18 U.S.C. § 372, and using or carrying 

firearms in furtherance of that crime, in violation of 18 U.S.C. § 924(c). To qualify as a 924(c) 

predicate offense, the charged crime must be a crime of violence. Section 372 is a crime of 

violence under 924(c)’s “force” and “residual clause.” Defendants’ Motion should be denied. 

I. The Categorical Approach—Section 372 Is Categorically a “Crime of Violence” 

The categorical approach compares “the elements of the [offense] with the generic 

federal definition.” Taylor v. United States, 495 U.S. 575 (1990). If the charge’s elements 

“criminalize a broader swath of conduct” than conduct covered by the generic federal definition, 

the offense is not a categorical crime of violence. United States v. Watson, CR No. 14-00751 

DKW, CV Nos. 15-00313 DKW-KSC, 15-00390 DKW-BMK, 2016 WL 1601564 (9th Cir. 

Mar. 2, 2016) (citing United States v. Dominguez-Maroyoqui, 748 F.3d 918, 920 (9th Cir. 2014)). 

II. The “Force” Clause—18 U.S.C. Section 924(c)(3)(A) 

An offense is a “crime of violence” if it has as an element the use, attempted use, or 

threatened use of physical force against the person or property of another.” Section 372 

requires proof that defendants “conspired.” Conspiracy requires knowing participation, so 

defendants’ claim that 372 lacks the requisite mens rea is wrong. See Pattern Jury Instructions 

for Fed. Criminal Cases, Dist. of S.C. (2015 ed.)1

, http://www.scd.uscourts.gov/pji 

 

1

 Another district court concluded that conspiring to commit a Hobbs Act robbery is not a crime 

of violence under the “force” clause because the jury was not required to find that defendant used 

or threatened to use physical force. United States v. Luong, CR No. 2:99-00433 WBS, 2016 WL 

1588495 (E.D. Cal. Apr. 20, 2016). Our case is distinguishable because the jury will be asked to 

find that defendants knowingly conspired to prevent by force, intimidation, or threat federal 

employees from discharging their duties. Courts have long recognized that a conspiracy’s 

formation threatens the accomplishment of the conspiracy’s object. See, e.g., United States v. 

Jimenez Recio, 537 U.S. 270, 275 (2003); United States v. Collins, 109 F.3d 1413 (9th Cir. 1997) 

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/PatternJuryInstructions.pdf. Next, Section 372 requires proof that the conspiracy’s goal was to 

prevent, by force, intimidation or threat” a federal employee from discharging his duties. See 

id. 

Section 372’s requirement that defendant use “force, intimidation, or threat” brings the 

statute squarely within 924(c). Moreover, unlike most cases attempting to divine whether a 

prior predicate crime qualifies for a sentence enhancement, Section 924(c) involves a live 

controversy that will ultimately be decided by a jury. The jury, in turn, will have to determine 

if this offense involved the type of “violent” physical force required under Johnson v. United 

States, 559 U.S. 133 (2010) (Johnson I).2

 

More recent cases interpreting Section 372 involve actual physical violence or clear 

threats of such violence. See, e.g., United States v. Rakes, 510 F.3d 1280 (10th Cir. 2007) (372 

 

(holding conspiracy to deliver a destructive device satisfied the crime of violence “force” clause); 

see also United States v. Wilkerson, 286 F.3d 1324, 1325 (11th Cir. 2002). 

2

 In the wake of Johnson v. United States, 135 S. Ct. 2551 (2015) (Johnson II), several district 

courts have questioned whether the categorical approach applies to § 924(c)(3) cases, especially in 

the context of a pretrial motion to dismiss. United States v. Checora, No. 2:14-CR-457-DAK, 

2015 WL 9305672, at *3 (D. Utah Dec. 21, 2015). See, e.g., United States v. Woodley, No. 

15-CR-20007, 2015 WL 7770859, at *4 (E.D. Mich. Dec. 3, 2015) (stating that none of the reasons 

for using the categorical approach apply with much force in a § 924(c) pretrial case); United States 

v. Church, No. 1:15-CR-42-TLS, 2015 WL 7738032, at *3 (N.D. Ind. Dec. 1, 2015); United States 

v. Brownlow, No. 1:15-CR-0034-SLB- SGC, 2015 WL 6452620, at *2 n.3 (N.D. Ala. Oct. 26, 

2015) (“the future of a ‘categorical approach’ to defining a crime of violence under § 924(c) may 

be short lived”); United States v. Standberry, No. 3:15-CR-102-HEH, 2015 WL 5920008, at *1 

(E.D. Va. Oct. 9, 2015) (noting that the categorical approach’s “value and utility are questionable 

in the present context where the violent nature of the alleged robberies is readily apparent from the 

fact of the . . . indictment”). The Ninth Circuit has not re-evaluated post-Johnson the question of 

whether the categorical approach should apply in this context, but one court has suggested 

persuasively that the analysis used to conduct a “cold record review of a prior conviction” is 

inappropriate in the context of trial, where the district court has the “benefit of viewing the 

evidence as it unfolds.” Standberry, 2015 WL 5920008, at *2. 

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charge for mailing threatening letter to AUSA); United States v. Hanson, 618 F.2d 1261 (8th Cir. 

1980) (armed defendants took over law enforcement center on Indian reservation at gunpoint and 

locked up officers). The cases defendants cite for the proposition that 372 is non-violent do not 

support that premise; in United States v. Fulbright, 105 F.3d 443 (9th Cir. 1997), overruled on 

other grounds by United States v. Heredia, 483 F.3d 913 (9th Cir. 2007), defendant mailed “arrest 

warrants” (and other documents) to a bankruptcy judge accusing him of “sedition, and high 

treason.” These actions prompted the judge to recuse himself from defendant’s case; the 

defendant’s letters were thinly veiled threats suggesting that a “citizens’ arrest” was in order. 

See also United States v. Hall, 342 F.2d 849 (4th Cir. 1965) (conspiracy to cause unlawful arrest 

of undercover government officer is a violation of Section 372); Finn v. United States, 219 F.2d 

894 (9th Cir. 1955) (372 charge sustained where conspirators conducted an unlawful “citizen’s 

arrest” of U.S. Attorney). The fundamental underpinning of Section 372 remains—the 

unlawful activity in Fulbright, Hall, and Finn involved threats of violent physical force. 

Courts that have ruled upon the question of whether statutes similar to Section 372 fall 

within the “force” clause have repeatedly held that they do. Specifically, courts have held that 

statutes with generally similar “force” or “intimidation” requirements qualify as crimes of 

violence. See, e.g., United States v. Juvenile Female, 566 F.3d 943, 948 (9th Cir. 2009) (18 

U.S.C. § 111(b), assault involving the use of a dangerous weapon or infliction of bodily injury, is 

categorically a crime of violence); United States v. Gordon, 642 F.3d 596, 598 (7th Cir. 2011) 

(robbery by “intimidation” is a “crime of violence” because “intimidation exists when a 

[defendant’s] words and actions would cause an ordinary person to feel threatened, by giving rise 

to a reasonable fear that resistance or defiance will be met with force”). 

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Recently, the Ninth Circuit reached a similar conclusion in Watson, where, following the 

Supreme Court’s ruling in Johnson v. United States, 135 S. Ct. 2551 (2015) (Johnson II), the 

court held that federal armed bank robbery is categorically a crime of violence under the “force” 

clause. Watson reaffirms the long-held principal predating Johnson II that the federal bank 

robbery statute that approximates the language proscribed by Section 372 fit squarely within the 

force clause. See also United States v. Wright, 215 F.3d 1020 (9th Cir. 2000); United States v. 

Selfa, 918 F.2d 749, 751 (9th Cir. 1990). The word “force” in the statute and the requirement 

that the force be used to “prevent officials from discharging their duties” demonstrates that the 

statute addresses violent conduct and otherwise satisfies 924(c)’s force clause. 

III. Title 18 U.S.C. § 372 Is Also a Crime of Violence Under the Residual Clause 

Conspiring to prevent federal employees from performing their jobs by force, 

intimidation, or threat also raises a “substantial risk that physical force against the person or 

property of another may be used in the course of committing the offense.” Indeed, defendants 

do not contend otherwise; instead, he argues that 924(c)’s residual clause is void for vagueness 

under Johnson II and Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015). Section 924(c)’s 

residual clause is constitutionally sound for several reasons. 

A. Section 924(c) Lacks the ACCA’s List of Enumerated Offenses 

The enumerated offense list, followed by an “otherwise” provision in the ACCA was 

determinative in Johnson, and it had troubled the Court since James. See, e.g., James v. United 

States, 550 U.S. 192, 215-16, 230 n.7 (2007) (Scalia, J. dissenting). The continuing confusion 

over how to interpret the list, in conjunction with the residual clause language, ultimately 

convinced the Court that the ACCA’s residual clause was unconstitutionally vague. The Court 

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referred to the enumerated crimes in explaining why its earlier ACCA decisions did “not succeed 

in bringing clarity to the meaning of the residual clause.” Johnson II, 135 S. Ct. at 2559. 

Critically, the Court distinguished other statutes requiring risk-based assessments in part because 

they do not “link[] a phrase such as ‘substantial risk’ to a confusing list of examples.” Id. at 2561. 

Section 924(c)(3)(B), like the statutes the Court distinguished in Johnson, contains no “confusing 

list” to cloud its analysis. 

 Further, in contrast to the ACCA, § 924(c)(3)(B) contains language identical to many other 

federal and state statutes. See, e.g., 18 U.S.C § 3142(f)(1)(A) and (g)(1) (bail statute); 18 U.S.C. 

§ 521(d)(3)(C) (enhanced sentence for criminal gang members); 18 U.S.C. § 3663A(c)(1)(A) 

(mandatory restitution); 18 U.S.C. § 5032 (juvenile transfer statute). Thus, applying Johnson to 

other risk-based statutes like 924(c) was not what the Court itself contemplated. 

 B. Section 924(c)(3)(B) Does Not Go Beyond the Offenses’ Elements 

Another defect in the ACCA identified in Johnson that is absent from § 924(c)(3)(B) is the 

necessity for courts to go “beyond evaluating the chances that the physical acts that make up the 

crime to injure someone” and to evaluate the risk for injury even “after” completion of the offense. 

135 S. Ct. at 2557; see also id. at 2559. The Court explained that the ACCA’s inquiry into 

whether a crime “involves conduct” that presents too much risk of injury goes beyond the offense 

elements.” Id. at 2557. “The inclusion of burglary and extortion among the enumerated 

offense,” the Court further explained, confirmed that courts assessing risk had to go “beyond 

evaluating the chances that the physical acts that make up the crime will injure someone.” Id.

By contrast, § 924(c)(3)(B) is significantly narrower. As the Supreme Court observed in 

Leocal v. Ashcroft, unlike the ACCA residual clause, where the “substantial risk” inquiry relates 

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“to the possible effect of a person’s conduct,” § 16(b) (and Section 924(c)(3)(B)) address “the use 

of force” “‘in the course of committing the offense.”’ 543 U.S. 1, 10 & n.7. This narrower 

approach is confined to the risks that arise during the commission of the offense. See United 

States v. Serafin, 562 F.3d 1105, 1109 (10th Cir. 2009) (emphasizing “the textual difference 

between § 16(b) and” the ACCA residual clause). Unlike the ACCA, § 924(c)(3)(B) does not go 

beyond “the physical acts that make up the crime.” Johnson II, 135 S. Ct. at 2557. Further, 

§ 924(c)(3)(B) looks at the risk of the “use of force” rather than the much broader “risk of injury.” 

This focus on the use of force during an offense, rather than on the potential risk and effects of the 

offense, limits the statute’s reach and avoids the kind of speculation about extra-offense conduct 

that Johnson denounced. 

C. The Court Has Not “Repeatedly” Failed to Construe § 924(c)(3)(B) in a 

Workable Way 

The Supreme Court in Johnson emphasized its own “repeated” inability to develop a 

“principled and objective standard” for the ACCA. 135 S. Ct. at 2558; see id. at 2559-60 (noting 

that Johnson was the Supreme Court’s “fifth [case] about the meaning of the [ACCA] residual 

clause”). In contrast, the Court has addressed § 924(c) on numerous occasions and never 

suggested any difficulty in applying its definition of a “crime of violence.” 

 D. Unlike the ACCA, § 924(c)(3)(B) Has Not Confused Lower Courts Either 

In addition to its other reasons for finding the ACCA vague, the Johnson Court cited 

numerous lower court splits about “the nature of the inquiry” that a court should conduct under the 

ACCA. Johnson II, 135 S. Ct. at 2560. Significantly, the disagreements went beyond “matters 

of degree.” Id. There is no such confusion at all with respect to § 924(c)(3)(B). 

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 E. The Ordinary-Case Analysis Does Not Invalidate § 924(c)(3)(B) 

Section 924(c)(3)(B) is not impossibly vague due to its reliance on courts’ evaluating the 

“ordinary case” of an offense. Courts at every sentencing must evaluate where a defendant’s 

conduct falls on the spectrum of ways of committing the offense—and hence how a defendant’s 

case compares to a norm. Congress has commanded such an analysis under 18 U.S.C. § 3553(a) 

and in particular under § 3553(a)(6). The Supreme Court has never suggested that there is a valid 

constitutional challenge to such statutory rules or the courts’ application of them. An inquiry 

about the risk that force will be used is not an unusual aspect of assessing a crime’s gravity. 

F. Section 924(c)(3)(B) Is Not Unconstitutionally Vague As Applied to This 

Offense 

 Johnson held that the fact that “some conduct that clearly falls within the provision’s 

grasp” does not preclude a finding of vagueness. Johnson II, 135 S. Ct. at 2561. But the Court 

did not hold that any possibility of a vague application required finding a statute void. Rather, it 

concluded that the ACCA’s residual clause was void because it is “a ‘judicial morass that defies 

systemic solution,’ ‘a black hole of confusion and uncertainty’ that frustrates any effort to impart 

‘some sense of order and direction.”’ Id. at 2562 (citation omitted). But “there are [other] 

statutes that by their terms or as authoritatively construed apply without question to certain 

activities, but whose application to other behavior is uncertain.” Smith v. Goguen, 415 U.S. 566, 

577-78 (1974). For those statutes, the general rule is that a vagueness challenge is not available to 

one who violates the “hard-core” of the statute. Id. at 577-78. 

 Unlike the ACCA’s residual clause, § 924(c)(3)(B) has a core. The Court has already 

identified at least one “core” offense—burglary—that falls within § 16(b) and also necessarily 

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falls within § 924(c)(3)(B). Leocal, 543 U.S. at 10. The Court described burglary as the “classic 

example” of a crime that satisfies the statutory language because, “by its nature, [it] involves a 

substantial risk that the burglar will use force against a victim in completing the crime.” Id.

Defendants are charged with using or carrying a firearm while conspiring to impede federal 

employees by force, intimidation, or threat. The alleged conduct falls well within the “core” of 

not only § 924(c)(3)(A)’s force clause, but § 924(c)(3)(B)’s residual clause, as it “involves a 

substantial risk that physical force against the person or property of another may be used in the 

course of committing the offense.” 

 G. Dimaya, By Its Explicit Terms, Does Not Apply to § 924(c)3

In Dimaya v. Lynch, a divided panel of this Court held that the “residual clause” in 18 

U.S.C. § 16(b), as incorporated into the INA’s definition of “aggravated felony,” see 8 U.S.C. 

§ 1101(a)(43)(F), is unconstitutionally vague. 803 F.3d 1110, 1120 (9th Cir. 2015). Although 

the identical residual clause language is used in 18 U.S.C. § 924(c)(3)(B), Dimaya should not 

control here. 

 First, Dimaya itself expressly disclaimed that it applied to the constitutionality of other 

statutes incorporating Section 16(b)’s language: “[o]ur decision does not reach the 

constitutionality of applications of 18 U.S.C. § 16(b) outside of 8 U.S.C. § 1101(a)(43)(F) or cast 

 

3

 Two district courts within the Ninth Circuit have rejected attempts to distinguish 924(c) from 

Dimaya’s treatment of 16(b). See United States v. Lattanaphom, CR No. 2:99-00433 WBS, 2016 

WL 393545, at *3-4 (E.D. Cal. Feb. 2, 2016) (noting it was “compelled” to extend Dimaya to 

924(c), but citing contrary authority from other federal courts across the country); United States v. 

Bell, No. 15-cr-00258-WHO, 2016 WL 344749 (N.D. Cal. Jan. 28, 2016). Other circuits have 

split on this question: United States v. Taylor, 814 F.3d 340 (6th Cir. 2016) (disagreeing with the 

Ninth Circuit); cf. United States v. Vivas-Ceja, 808 F.3d 719 (7th Cir. 2015) (following Dimaya); 

United States v. Gonzalez-Longoria, 813 F.3d 225 (5th Cir.) (same, by a divided panel), reh’g en 

banc granted, (Feb. 26, 2016) . 

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any doubt on the constitutionality of 18 U.S.C. § 16(a)’s definition of a crime of violence.” 

Dimaya, 803 F.3d at 1120 n.17 (emphasis added). Although the panel majority did not explain its 

reasons for explicitly limiting its holding to the INA, a few possibilities exist. 

 The Court in Johnson unequivocally rejected the suggestion that its decision called into 

question the residual clauses in other federal statutes. See 135 S. Ct. at 2561 (“The Government 

and the dissent next point out that dozens of federal and state criminal laws use terms like 

‘substantial risk,’ ‘grave risk,’ and ‘unreasonable risk,’ suggesting that to hold the residual clause 

unconstitutional is to place these provisions in constitutional doubt. . . . Not at all.”). Section 

924(c) should be accorded the usual presumption that Congress’ laws are constitutional, and 

because this statute enjoys several material distinctions from the ACCA’s residual clause, 

defendants’ vagueness challenge should be rejected. 

IV. Conclusion 

Defendants’ Motion to Dismiss should be denied. 

 Respectfully submitted this 11th day of May 2016. 

 BILLY J. WILLIAMS 

 United States Attorney 

 s/ Ethan D. Knight 

 ETHAN D. KNIGHT, OSB #992984 

 GEOFFREY A. BARROW 

 CRAIG J. GABRIEL, OSB #012571 

 Assistant United States Attorneys 

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