1

J. Morgan Philpot (Oregon Bar No. 144811)

Marcus R. Mumford (admitted pro hac vice)

405 South Main, Suite 975

Salt Lake City, UT 84111

(801) 428-2000

morgan@jmphilpot.com

mrm@mumfordpc.com

Attorneys for Defendant Ammon Bundy

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

UNITED STATES OF AMERICA,

Plaintiff,

v.

AMMON BUNDY, et al,

Defendants.

Case No. 3:16-cr-00051-BR

DEFENDANT AMMON BUNDY’S 

MOTION TO COMPEL INFORMATION 

REGARDING THE GOVERNMENT’S 

USE OF INFORMANTS

District Judge Anna J. Brown

Defendant Ammon Bundy moves to compel the government to provide information 

regarding its use of informants in the investigation of this matter, and to identify any and all 

agents who could testify knowledgeably regarding such matters at trial. 

The Court recently circulated its First Draft Final Jury Instructions, dated October 4, 

2016, which added an instruction regarding the “Government’s Use of Undercover Agents and 

Informants.” On October 10, 2016, Mr. Bundy requested language in that proposed instruction to 

make clear that “a person cannot be convicted of conspiring with someone working on behalf of 

law enforcement, such as an informant,” and that, in proving its conspiracy charge, “the 

government must prove beyond a reasonable doubt that a defendant conspired with at least one 

other person, and that other person is not a government informant.” [#1403] As authority for this 

request, Mr. Bundy cited United States v. Escobar De Bright, 742 F.2d 1196, 1200-02 (9th Cir. 

1984) (reversing for failing to instruct jury that it “could find the defendant guilty of conspiracy 

only if it determined that he acted with the knowledge that persons other than the government 

Case 3:16-cr-00051-BR Document 1423 Filed 10/13/16 Page 1 of 5
2

agent were also involved in the illegal scheme,” adopting the rule from Sears v. United States, 

343 F.2d 139, 142 (5th Cir. 1965)), United States v. Ritter, 989 F.2d 318, 321 (9th Cir. 1993) 

(reversing convictions for conspiracy where defendant’s only coconspirators were government 

agents and informers), United States v. Pennell, 737 F.2d 521, 536 (6th Cir. 1984) (“[P]roof of 

an agreement between a defendant and a government agent or informer will not support a 

conspiracy conviction.”), and United States v. Stone, Case No. 10-20123, 2012 WL 1034937, at 

*7 (E.D. Mich. March 27, 2012) (same).

In response, the government did not dispute the statements of law set forth in Mr. 

Bundy’s filing, but, rather, argued that Mr. Bundy’s request was improper “because Ammon 

Bundy has never advanced a theory or proffered evidence to suggest that he conspired to violate 

18 U.S.C. § 372 with a government agent, but with no one else.” [#1420] In other words, the 

government is arguing that unless and until Mr. Bundy admits that he conspired to violate 18 

U.S.C. § 372, but with a government informant, the jury should not be instructed regarding the 

government’s burden to prove that he conspired with at least one other person who is not a 

government informant. 

The government’s argument is misplaced for at least two reasons: First, it improperly 

seeks to shift the burden of proof on this issue to the defendant. See United States v. Lake, 482 

F.2d 146, 149 (9th Cir. 1973) (reversing conviction for draft evasion where the court’s jury 

instruction “erroneously place[d] the burden of proof upon the defendant to prove his nonreceipt” of the draft notice). “The government must prove beyond a reasonable doubt every 

element necessary for conviction.” Id. Here, the Superseding Indictment alleges that Mr. Bundy 

conspired with a number of persons “known and unknown.” [#282 at 2] To say that Mr. Bundy 

can request a proper instruction regarding the government’s use of informants, and the 

Case 3:16-cr-00051-BR Document 1423 Filed 10/13/16 Page 2 of 5
3

impossibility of conspiring with informants, only after he admits to attempting to break the law 

with someone who happens to be a government informant, is improperly shifting the

government’s burden of proof to the defense. 

Second, the government’s position is disingenuous when the Court considers how the 

government has blocked and frustrated Mr. Bundy’s efforts to expose the government’s use of 

informants in the investigation of this matter. Among other things, the government blocked

questions regarding its use of informants that Defendants posed to FBI Agents Ronnie Walker on 

September 27, 2016, and Christopher Luh and Chad Lapp on September 28, 2016 (after the 

Court originally overruled the government’s relevance objection in the case of Agent Luh).

Earlier this week, the Court sustained the government’s relevance objections regarding whether 

government informant Terri Linnell was aware of other informants. Thereafter, the government 

cross-examined Ms. Linnell based on what turned out to be an unredacted version of reports that 

the government had only produced to Defendants in heavily redacted form, making it so 

Defendants were unable to confirm that the government even had a good faith basis for the 

questions in the government’s cross-examination of Ms. Linnell. These facts give further reason 

why the government’s proposal is unfair – even if its proposal reflected a proper statement of the 

law, which it does not, the government cannot shift a burden of proof to Defendants on an issue 

while simultaneously blocking Defendants’ efforts to obtain the testimony or other evidence they 

would need to satisfy that burden.

* * *

Mr. Bundy anticipates that the Court will entertain further argument regarding the 

confidential informant jury instruction in an upcoming hearing. In the meantime, he requests that 

the Court order discovery on this issue, as set forth below. This discovery is warranted and 

Case 3:16-cr-00051-BR Document 1423 Filed 10/13/16 Page 3 of 5
4

required under Rule 16 of the Federal Rules of Criminal Procedure, see Fed. R. Crim. P. 

16(a)(1)(E)(i) and Adv. Comm. Notes 1974 (stating that Rule 16 “is not intended to limit the 

judge's discretion to order broader discovery in appropriate cases”); United States v. Stever, 603 

F.3d 747, 752 (9th Cir. 2010), Brady v. Maryland, 373 U.S. 83, 87 (1963), and related authority. 

Any doubt regarding the government’s need to disclose such evidence should be resolved in 

favor of disclosure. See United States v. Ramirez, 608 F. 2d 1261, 1266, n.6 (9th Cir. 1979) 

(citing United States v. Agurs, 427 U.S. 97, 108 (1976)); Kyles v. Whitley, 514 U.S. 419, 439 

(1995) (“prosecutor[s] anxious about tacking too close to the wind will disclose a favorable piece 

of evidence”). 

In preparation for this motion, Mr. Bundy went back into the government’s discovery and 

located references to at least 15 confidential human sources, for which the government produced 

several heavily redacted Form 1023s. These government memos, however, do not identify the 

informant or their handlers. To resolve the game of cat and mouse that has developed on this 

issue, Mr. Bundy requests that the government be ordered immediately to: 

- Identify any and all government informants and/or undercover agents with 

whom any or all of the Defendants may have come in contact in the time period 

from November 2015 to the present; 

- Explain the time period of activity for each informant and/or agent, and the 

terms of the relationship (i.e., any compensation or favorable treatment given or

promised to the informant and/or agent?); 

- Produce any and all memos (Form 1023s, etc.) related to these informants and/or 

agents in unredacted form (subject to the protective order in the case); and 

- For each informant and/or undercover agent, identify the government agent who 

Case 3:16-cr-00051-BR Document 1423 Filed 10/13/16 Page 4 of 5
5

can give percipient testimony regarding their interactions with Defendants and 

the other alleged co-conspirators. 

Respectfully requested this 12th day of October, 2016. 

/s/ Marcus R. Mumford

Marcus R. Mumford

J. Morgan Philpot

Attorneys for Ammon Bundy

Case 3:16-cr-00051-BR Document 1423 Filed 10/13/16 Page 5 of 5