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 REOPEN 

MOTION TO SUPPRESS 

FACEBOOK EVIDENCE (#1040) 

 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 Reopen Motion to 

Suppress Evidence (Facebook Accounts) (ECF No. 1040), filed by defendant Fry on behalf of all 

similarly situated defendants.

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Case 3:16-cr-00051-BR Document 1077 Filed 08/19/16 Page 1 of 8
Government’s Response to Defendants’ Motion to Reopen Motion to Suppress 

Facebook Evidence (#1040) 

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I. Government’s Position 

The government respectfully recommends that defendants’ Motion be denied for the 

following reasons: (1) the Facebook search warrant was properly executed by the FBI, and the 

FBI complied with all terms of the warrant; (2) no defendant going to trial on September 7, 2016, 

had his or her privacy interests implicated by the raw Facebook data being inadvertently included 

in discovery; and (3) wholesale suppression under the “flagrant disregard standard” is 

inappropriate here. 

II. Legal Argument 

A. The FBI Properly Executed the Facebook Warrant 

To quickly recap the procedural background, on April 8, 2016, Judge Papak issued a 

search and seizure warrant for 23 Facebook accounts associated with the defendants in this case. 

See Ex. 1 filed under seal, at 1. The FBI executed the warrant on April 11, 2016. See Ex. 1, 

at 2. On May 13, 2016, an FBI agent filed with the Court the Warrant’s Return, listing an 

inventory of the property (i.e., data) received by the FBI from Facebook. See Ex. 1, at 2. 

Pursuant to the terms of the warrant, law enforcement had 180 days to segregate responsive and 

non-responsive materials. See Ex. 1, at 8. The FBI completed its segregation process earlier 

this summer, but it should be noted that the 180-window has not even expired yet. 

The FBI properly received the Facebook data, segregated the responsive materials from 

the non-responsive materials, and sealed the non-responsive materials, which will not be 

reopened absent a further order from the Court. 

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Case 3:16-cr-00051-BR Document 1077 Filed 08/19/16 Page 2 of 8
Government’s Response to Defendants’ Motion to Reopen Motion to Suppress 

Facebook Evidence (#1040) 

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As explained in the government’s August 5, 2016, letter to the Court, the inadvertent 

disclosure of certain raw Facebook data to codefendants was the result of a miscommunication 

within the U.S. Attorney’s Office (“USAO”), as explained below:1

1. To assist the defense in their preparation for trial, on May 16, 2016, the USAO 

provided each defendant who had a seized Facebook account the raw data from that account 

(with the exception of accounts that contained potentially privileged communications). See

Ex. 2. The trial prosecutors in this case did not review the raw data, although there is nothing in 

the terms of the warrant that prevents the prosecutors, or any member of the prosecution team, 

from doing so. 

2. On May 19, 2016, Facebook provided the FBI with “10.7GB worth of video and 

documents in an upgraded format. This information is believed to be similar to [the May 13, 

2016] previously provided return, only in a new format.” See Ex. 1, at 2. After receiving the 

Facebook data in an upgraded format, the FBI filed an Amended Warrant Return with the Court 

on May 25, 2016. See Ex. 1, at 2. The FBI provided this data in an updated format to the 

USAO’s filter team to review for privileged communications. After the filter team completed 

its review of the Facebook data, the non-privileged data was returned to the FBI, according to the 

filter protocol, so that the FBI could complete its segregation of responsive materials from 

non-responsive materials in the warrant. 

3. In June 2016, in what was meant to be a separate batch of discovery, the filter 

team provided non-privileged jail communications to the USAO’s discovery processing center. 

 

1

 See Declaration of Assistant United States Attorney Geoffrey A. Barrow filed concurrently. 

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Government’s Response to Defendants’ Motion to Reopen Motion to Suppress 

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However, with that internal USAO transfer of non-privileged jail communications, the 11 

non-privileged raw Facebook accounts at issue here were also inadvertently included. Those 

non-privileged materials, including the non-privileged jail communications and raw Facebook 

materials, were then produced in discovery in this case on June 24, 2016. 

4. As noted by the defense, the production of that raw Facebook data did not garner 

immediate attention, because amongst the voluminous and complex discovery in this case, the 11 

Facebook accounts were mostly given only a single “placeholder” Bates number in the discovery 

index. Additionally, this same discovery production on June 24, 2016, also included the vast 

majority of the segregated Facebook data provided to all defendants. 

The bottom line is that the FBI complied with all terms of the warrant and properly 

followed the search procedures set forth in Attachment B of the warrant. It was a 

miscommunication within the USAO that led to defendants receiving the raw Facebook data of 

some of their codefendants. There is simply no authority that suppression of the Facebook 

evidence would be the proper remedy in this case. 

B. No September 7, 2016, Trial Defendant Was Affected 

None of the defendants going to trial on September 7, 2016, was affected by the 

discovery of the raw Facebook data. The following defendants’ accounts were inadvertently 

discovered to all defendants: 

 Sandra Anderson (trial scheduled for February 14, 2017) 

 Sean Anderson (trial scheduled for February 14, 2017) 

 Jason Blomgren (pleaded guilty) 

 Blaine Cooper—2 Facebook accounts (pleaded guilty) 

 Travis Cox (pleaded guilty) 

 Wesley Kjar (pleaded guilty) 

Case 3:16-cr-00051-BR Document 1077 Filed 08/19/16 Page 4 of 8
Government’s Response to Defendants’ Motion to Reopen Motion to Suppress 

Facebook Evidence (#1040) 

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 Eric Lee Flores (pleaded guilty) 

 Corey Lequieu (pleaded guilty) 

 Geoff Stanek (pleaded guilty) 

 Darryl William Thorn (trial scheduled for February 14, 2017). 

While the government does not believe that suppression is appropriate for any defendant, 

the defendants proceeding to trial on September 7, 2016, have no basis on which to seek 

suppression, because their Facebook accounts were not affected. To the extent that defendants 

going to trial on February 14, 2017, believe they have an argument in favor of suppression, the 

government respectfully suggests that the issue be heard by the Court after the first trial is 

completed. 

C. There Was No “Flagrant Disregard” of the Terms of the Warrant 

As the FBI properly executed the warrant, they did not disregard the warrant’s terms, and 

there certainly was not any flagrant disregard of the warrant. 

In United States v. Chen, 979 F.2d 714, 718 (9th Cir. 1992), the Ninth Circuit reversed a 

district court’s finding that law enforcement flagrantly disregarded the terms of a warrant, and 

held that “the district court erred in balancing the interests at stake.” As the Ninth Circuit 

explained in Chen: 

Ordinarily, only evidence that is obtained in violation of a warrant is suppressed. 

United States v. Tamura, 694 F.2d 591, 597 (9th Cir. 1982) (Tamura). However, 

in cases where there is a “flagrant disregard” for the terms of the warrant, the 

district court may suppress all of the evidence, including evidence that was not 

tainted by the violation. [United States v. Medlin, 842 F.2d 1194, 1199 (10th Cir. 

1988)]. 

This extraordinary remedy should be used only when the violations of the 

warrant’s requirements are so extreme that the search is essentially transformed 

into an impermissible general search. See id.; Tamura, 694 F.2d at 597. . . . [W]e 

have refused to suppress all of the evidence where the agents who exceeded their 

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Government’s Response to Defendants’ Motion to Reopen Motion to Suppress 

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authority under the warrant “were motivated by considerations of practicality 

rather than by a desire to engage in indiscriminate ‘fishing.’” Tamura, 694 F.2d at 

597. Thus, wholesale suppression is appropriate under the flagrant disregard 

standard only when the officers transform the search into an impermissible 

general search by ignoring the terms of the warrant and engaging in 

indiscriminate fishing. 

Id. at 717. 

 Here, the FBI’s compliance with the warrant precludes any finding that the search was 

transformed into an “impermissible general warrant” or that the FBI engaged in “indiscriminate 

fishing.” Instead, the USAO was “motivated by considerations of practicality,” when it 

provided defendants with raw data from their Facebook accounts to prepare for trial on May 16, 

2016. That initial, individualized production later led to the inadvertent discovery of raw data 

to codefendants. There is no legal authority under which suppression of the Facebook evidence 

would be appropriate. In particular, the September 7, 2016, trial defendants lack any grounds 

for suppression whatsoever. 

 D. An Evidentiary Hearing Is Not Required 

The Ninth Circuit has repeatedly held that not every motion to suppress requires an 

evidentiary hearing. Whether to hold an evidentiary hearing rests within the discretion of the 

district court. United States v. Walczak, 783 F.2d 852, 857 (9th Cir. 1986) (citing United States v. 

Santora, 600 F.2d 1317, 1320 (9th Cir.), modified on other grounds, 609 F.2d 433 (1979)). In 

exercising that discretion, a district court need only hold a hearing on a motion to suppress when 

“the moving papers are sufficiently definite, specific, detailed, and nonconjectural to enable the 

court to conclude that contested issues of fact going to the validity of the search are in issue.” Id.

(citing United States v. Licavoli, 604 F.2d 613, 621 (9th Cir. 1979)).

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Government’s Response to Defendants’ Motion to Reopen Motion to Suppress 

Facebook Evidence (#1040) 

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“A hearing will not be held on a defendant’s pre-trial motion to suppress merely because a 

defendant wants one. Rather, the defendant must demonstrate that a ‘significant disputed factual 

issue’ exists such that a hearing is required.” United States v. Howell, 231 F.3d 615, 621 (9th Cir. 

2000) (quoting United States v. Harris, 914 F.2d 927, 933 (7th Cir. 1990)). 

A disputed factual issue will require an evidentiary hearing only when that issue is critical 

or determinative in deciding the motion. E.g., United States v. Quoc Viet Hoang, 486 F.3d 1156, 

1163 (9th Cir. 2007) (“Although the parties disputed how and whether Officer Todd selected the 

package for inspection, the government’s concession that it lacked reasonable suspicion rendered 

the dispute immaterial. Nor would resolution of that dispute alter the outcome of our Fourth 

Amendment analysis.”). An evidentiary issue does not arise based on a defendant’s unsupported 

allegations. See United States v. Ramirez-Garcia, 269 F.3d 945, 947 (9th Cir. 2001). 

Here, defendants have put forth no evidence that the FBI improperly executed the warrant. 

In the USAO’s letter to the Court on August 5, 2016, and in this pleading, the government has 

explained the circumstances under which the raw Facebook data from some defendants was 

provided to other defendants. Because there is no basis to find that the FBI did not comply with 

the terms of the warrant, the government submits that an evidentiary hearing is not necessary to 

resolve this matter. 

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Case 3:16-cr-00051-BR Document 1077 Filed 08/19/16 Page 7 of 8
Government’s Response to Defendants’ Motion to Reopen Motion to Suppress 

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III. Conclusion 

For the reasons set forth above, the government respectfully requests that defendants’ 

Motion to Reopen the Motion to Suppress Facebook Evidence be denied without an evidentiary 

hearing. 

 Dated this 19th day of August 2016. 

 Respectfully submitted, 

 BILLY J. WILLIAMS 

 United States Attorney 

 s/ Craig J. Gabriel 

 ETHAN D. KNIGHT, OSB #992984 

 GEOFFREY A. BARROW 

 CRAIG J. GABRIEL, OSB #012571 

 Assistant United States Attorneys 

Case 3:16-cr-00051-BR Document 1077 Filed 08/19/16 Page 8 of 8