IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

UNITED STATES OF AMERICA,

Plaintiff,

v.

AMMON BUNDY, JON RITZHEIMER,

JOSEPH O’SHAUGHNESSY, RYAN

PAYNE, RYAN BUNDY, BRIAN

CAVALIER, SHAWNA COX, PETER

SANTILLI, JASON PATRICK,

DUANE LEO EHMER, DYLAN 

ANDERSON, SEAN ANDERSON,

DAVID LEE FRY, JEFF WAYNE

BANTA, SANDRA LYNN ANDERSON,

KENNETH MEDENBACH, BLAINE

COOPER, WESLEY KJAR, COREY

LEQUIEU, NEIL WAMPLER, JASON

CHARLES BLOMGREN, DARRYL

WILLIAM THORN, GEOFFREY

STANEK, TRAVIS COX, ERIC LEE

FLORES, and JAKE RYAN,

Defendants.

3:16-cr-00051-BR

 

ORDER DENYING MOTIONS TO

CONTINUE TRIAL DATE

FILED BY AMMON BUNDY AND

RYAN BUNDY

BROWN, Judge.

This matter comes before the Court on the Motion (#815) to

Continue September 7, 2016, Trial Date filed by Defendant Ammon

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BUNDY AND RYAN BUNDY

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Bundy and the Motion (#818) to Continue September 7, 2016, Trial

Date filed by Defendant Ryan Bundy. For the reasons that follow

and as stated on the record on July 7, 2016, the Court DENIES the

Motions.

In his Motion Ammon Bundy requests the Court to vacate the

September 7, 2016, trial date as to him and to grant him and his

counsel (who formally took on Bundy’s representation in this

matter on June 3, 2016) a period of 60 days to litigate an

anticipated motion for review of pretrial detention, to review

discovery, to further prepare for trial, and to request a

specific trial date after September 7, 2016. At the Status

Hearing on July 6, 2016, counsel for Ammon Bundy further

specified that they need additional trial-preparation time to

review certain video evidence with their client and that the

conditions of Ammon Bundy’s pretrial detention have impeded

confidential conferral between Defendant and counsel and

Defendant’s trial preparation generally.

Ryan Bundy joins Ammon Bundy’s Motion, and he similarly

contends the conditions of pretrial detention have frustrated his

ability to review discovery, to contact potential witnesses, and

otherwise to prepare for trial. In addition, in light of Ryan

Bundy’s prior insistence that he was prepared to go to trial as

soon as April of this year, he now contends the fact of his

indictment in criminal proceedings in the District of Nevada

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justifies his current request for a continuance.1

STANDARD

A criminal defendant’s motion to continue the trial date is

a matter within the case-management discretion of the Court. See

United States v. Wilkes, 662 F.3d 524, 543 (9th Cir. 2011)

(“Denials of motions for trial continuances are reviewed for

abuse of discretion.”). In reviewing a court’s decision to deny

a criminal defendant’s motion for a continuance, the Ninth

Circuit analyzes the following factors: (1) the extent of

defendant’s diligence in his efforts to ready his defense prior

to the date set for trial; (2) the likelihood that the need for a

continuance could have been met if the continuance had been

granted; (3) the extent to which granting the continuance would

have inconvenienced the court and the opposing party, including

witnesses; and (4) the extent to which the defendant might have

suffered harm as a result of the district court’s denial. United

States v. Mejia, 69 F.3d 309, 314 (9th Cir. 1995). See also

United States v. Chandler, 316 F. App'x 676, 677 (9th Cir. 2009). 

In any event, the defendant must establish “[p]rejudice resulting

1

 The Court notes Ryan Bundy was indicted in the District of

Nevada on February 17, 2016, but he continued to assert the Court

was required to begin trial in this matter no later than April

2016 until the Court issued its March 9, 2016, Order (#289)

Designating Case as Complex over Ryan Bundy’s objection.

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from the denial of the continuance.” Wilkes, 622 F.3d at 543.

ANALYSIS

As noted, Ammon and Ryan Bundy move the Court to vacate the

September 7, 2016, trial date and to allow counsel for Ammon

Bundy to provide a status report to the Court in 60 days to make

a recommendation as to when Ammon Bundy can be prepared for

trial. Ryan Bundy joins in that request.

I. Extent of Diligence

Neither Defendants Ammon Bundy nor Ryan Bundy have

demonstrated that, despite their asserted diligence in preparing

for trial to begin on September 7, 2016, they cannot be ready. 

There is not any showing on the record as to the steps Ammon

Bundy, Ammon Bundy’s counsel, or Ryan Bundy have taken to prepare

for trial or to demonstrate why they cannot prepare for trial in

the weeks between now and September 7, 2016.

Although the ordinary conditions of pretrial release

unquestionably complicate trial preparation for all in-custody

defendants, it is notable that other in-custody Defendants in

this case have actively litigated multiple, complicated issues in

this matter and to date remain on track to begin trial on

September 7, 2016. Moreover, the in-custody Defendants in this

action, including Ammon and Ryan Bundy, have been provided with

extraordinary accommodations to facilitate their trial

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preparation, including the personal and continuing assistance of

Senior United States District Judge Robert E. Jones in engaging

with jail authorities to address issues related to discovery

review and attorney-client contact and in making available

additional attorney-client conferral facilities available through

the United States Marshals Service. To the extent that the

Bundys require further assistance in this respect, the Court

directs them to work with Judge Jones. In any event, neither

Ammon nor Ryan Bundy have made any showing that they have taken

full advantage of the resources available to them and that they,

nevertheless, cannot be ready for trial as scheduled. 

Accordingly, on this record the Court concludes the first

factor weighs heavily against granting the Bundys’ Motions.

II. Likelihood that the Need for the Continuance Could Be Met

In their Motions and at the July 6, 2016, Status Hearing,

Ammon and Ryan Bundy asserted additional time was necessary to

review video evidence and other unspecified discovery, to relitigate pretrial release, and to litigate other unspecified

matters.

There is not any showing, however, that additional time is

necessary to accomplish these objectives. Attorneys (including

counsel for other Defendants in this case) regularly litigate

pretrial-release matters while engaging in trial preparation. 

This is especially true considering Ammon Bundy is one of two

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BUNDY AND RYAN BUNDY

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Defendants in this case who is represented by two attorneys and

Ryan Bundy, despite appearing pro se, has the assistance of

highly competent standby counsel. Moreover, there is not any

showing that the video evidence referenced by counsel for Ammon

Bundy and other discovery cannot be reviewed adequately during

the two months between now and trial, particularly in light of

the special accommodations extended to them by Judge Jones. 

Ammon and Ryan Bundy, therefore, have failed to demonstrate

additional time is necessary to prepare for trial. 

Accordingly, the Court concludes there is not a showing of

real need for a continuance by Ammon or Ryan Bundy, and,

therefore, this factor weighs against granting the Bundys’

Motions.

III. Inconvenience to the Court, Other Parties, and Witnesses

At the outset of these proceedings both Ammon and Ryan Bundy

advocated adamantly that they were entitled to a trial date no

later than mid-April 2016 and that no further period of

excludable delay was warranted under the Speedy Trial Act, 18

U.S.C. § 3161. By Order (#289) issued March 9, 2016, the Court

designated this case as complex pursuant to 18 U.S.C. 

§ 3161(h)(7)(B)(ii) over the objection of Ammon Bundy, Ryan

Bundy, and other Defendants, and found additional excludable

delay was warranted on that basis. After considering the input

of all parties, the Court issued an Order (#389) on April 11,

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2016, setting the trial to begin with jury selection on September

7, 2016. The Court selected this date on the basis of the

invocation of speedy-trial rights by multiple Defendants (many of

whom remain in custody), the potential undue burden that multiple

trials would likely impose on citizen jurors generally and

witnesses in particular, and the increased system-wide costs that

multiple trials would implicate. 

In the context of these significant issues, the Court

concludes the continuance requested by the Bundys would cause

severe prejudice to court proceedings in two districts and to the

many witnesses that the parties are expected to call in this

matter and would necessitate at least two additional trials after

the September proceedings because the Bundys’ requested

continuance would preclude them from participating in the trial

that will begin on September 7, 2016. That trial will likely

continue through October and through most or all of the month of

November, if not longer. As a result, the earliest the Court

could anticipate beginning trial for Ammon and Ryan Bundy would

be sometime after November 2016. Scheduling a weeks-long trial

to begin in mid-November, however, is difficult in its own right

because the year-end holidays would substantially complicate the

availability of witnesses and jurors for trial.

More importantly, however, Ammon and Ryan Bundy are also

charged in a District of Nevada case that is scheduled to proceed

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to trial in February 2017 and involves several co-defendants,

some of whom are and some who are not involved in these

proceedings. Even a mid-November start to the Bundys’ trial in

these proceedings would preclude them from being moved to the

District of Nevada with sufficient time to prepare for the Nevada

trial that begins in February 2017. As a result, the speedytrial rights of the parties and the public in the District of

Nevada also would be in jeopardy. 

The Court notes the more likely result of a continuance

granted to the Bundys in this matter is that they would be

transferred to the District of Nevada for trial there before they

could be returned to this District in late-Spring 2017 at the

earliest to resume preparing for trial in this case. Thus, Ammon

and Ryan Bundy at that stage would almost certainly require a

third trial here,2 a prospect that would impose an unreasonable

burden on the government, witnesses, and the Court.

Granting the Bundys’ requested continuance, therefore, would

severely prejudice this Court’s ability to bring these

proceedings to a fair, timely, and orderly resolution for all

concerned and would prejudice the District of Nevada’s ability to

manage its complex case in which Ammon and Ryan Bundy are also

2

 The Court anticipates holding a second trial in these

proceedings for those Defendants who have been granted

continuances (none of whom are charged in the District of Nevada)

sometime in the early- or mid-Spring of 2017.

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charged. Their requested continuance would also impose a

significant and unreasonable burden on the government, witnesses,

and the Court. Such prejudice to so many parties would be

unacceptable in most circumstances, but it is especially so in

light of the extraordinary efforts expended to date by the

parties and the Court to accommodate Defendants with the earliest

possible trial date.

Accordingly, on this record the Court concludes the

extraordinary inconvenience to the Court, the parties, and

witnesses caused by a continuance weighs heavily against granting

the Bundys’ Motions.

IV. Potential for Harm Absent a Continuance

As noted, neither Ammon nor Ryan Bundy have made a

sufficient showing that they cannot be prepared for trial

beginning September 7, 2016. 

Although the discovery is voluminous in this matter, the

Court has taken several steps to facilitate the efficient

production and review of that discovery, including an expedited

process for the Court to resolve discovery disputes without

delay. In addition, the Court, as noted, has made extraordinary

accommodations to facilitate review of discovery for the incustody Defendants. Moreover, the Court has already directed the

government to provide each Defendant with notice of the basic

factual theories that the government anticipates it will pursue

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as to each Defendant and has directed the government to submit

its trial documents on July 29, 2016, almost six weeks before

voir dire is scheduled to begin.

Finally, despite the voluminous nature of the discovery,

both Ammon and Ryan Bundy are unquestionably aware of the

fundamental facts underlying this case and already know the

primary evidence on which the government and co-Defendants will

rely. Although there are significant challenges inherent in

preparing for a case of this complexity, the government, several

Defendants, and the Court are on track to go to trial beginning

September 7, 2016. Ammon and Ryan Bundy have not made any

showing that despite due diligence they also cannot be prepared

for trial on that date.

Accordingly, on this record the Court concludes this factor

weighs against granting the Bundys’ Motions.

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CONCLUSION

For these reasons, the Court DENIES Ammon Bundy’s Motion

(#815) to Continue September 7, 2016, Trial Date and Ryan Bundy’s

Motion (#818) to Continue September 7, 2016, Trial Date.

IT IS SO ORDERED.

DATED this 7th day of July, 2016.

 /s/ Anna J. Brown 

ANNA J. BROWN

United States District Judge

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