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 

EXCERPT TRANSCRIPT OF PROCEEDINGS

(Excerpt of Oral Argument) 

BEFORE THE HONORABLE ANNA J. BROWN, DISTRICT JUDGE 

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Case 3:16-cr-00051-BR Document 388 Filed 04/11/16 Page 1 of 28
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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 

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 

 

FOR DEFENDANT RYAN 

BUNDY: RYAN BUNDY 

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Case 3:16-cr-00051-BR Document 388 Filed 04/11/16 Page 2 of 28
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 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 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 PATRICK: ANDREW KOHLMETZ 

 Raivio, Kohlmetz & Steen, PC 

 741 SW Lincoln Street 

 Portland, OR 97201 

 (503)224-1104 

FOR DEFENDANT EHMER: DAVID AUDET 

 249 NE Lincoln 

 Hillsboro, OR 97124 

 (503)648-3020 

FOR DEFENDANT DYLAN 

ANDERSON: SAMUEL KAUFFMAN 

 Kauffman Killberg, LLC 

 1001 SW 5th Avenue, Suite 1414 

 Portland, OR 97204 

 (503)224-2595 

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Case 3:16-cr-00051-BR Document 388 Filed 04/11/16 Page 3 of 28
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APPEARANCES: (continuing) 

FOR DEFENDANT SEAN 

ANDERSON: MATTHEW McHENRY 

 Levine & McHenry, LLC 

 1001 SW Fifth Avenue, Suite 1414 

 Portland, OR 97204 

 (503)546-3927 

FOR DEFENDANT FRY: CELIA HOWES 

 Hoevet Olson Howes, PC 

 1000 SW Broadway, Suite 1500 

 Portland, OR 97205 

 (503)228-0497 

FOR DEFENDANT 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 

MEDENBACH: KENNETH MEDENBACH 

 Pro Se 

 25795-086 

 MATTHEW SCHINDLER 

 501 4th Street #324 

 Lake Oswego, OR 97034 

 (503)699-7333 

FOR DEFENDANT BLAINE 

COOPER: KRISTA SHIPSEY 

 820 SW 2nd Avenue, Suite 275 

 Portland, OR 97204 

 (503)309-9024 

FOR DEFENDANT KJAR: JAMES HALLEY 

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

 Portland, OR 97204 

 (503)295-0301 

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Case 3:16-cr-00051-BR Document 388 Filed 04/11/16 Page 4 of 28
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APPEARANCES: (continuing) 

FOR DEFENDANT LEQUIEU: RAMON PAGAN 

 121 SW Salmon Street, 11th Floor 

 PMB #1195 

 Portland, OR 97204 

 (971)270-0421 

FOR DEFENDANT WAMPLER: AMY BAGGIO 

(defendant not present) Appearing for Lisa Maxfield 

 621 SW Morrison, Suite 1025 

 Portland, OR 97205 

 (503)222-9830 

FOR DEFENDANT BLOMGREN: ROBERT RAINWATER 

(defendant not present) Rainwater Law Group 

 1327 SE Tacoma, Suite 239 

 Portland, OR 97202 

 (971)271-7566 

FOR DEFENDANT THORN: LAURIE SHERTZ 

 121 SW Salmon Street, 11th Floor 

 Portland, OR 97204 

 (503)406-2136 

 

FOR DEFENDANT STANEK: BEN ANDERSEN 

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

 Portland, OR 97207 

 (503)860-2531 

FOR DEFENDANT FLORES: ERNEST WARREN, JR. 

(defendant not present) Warren & Sugarman 

 838 SW First Avenue, Suite 500 

 Portland, OR 97204 

 (503)228-6655 

FOR DEFENDANT JAKE 

RYAN: JESSE MERRITHEW 

 Levi Merrithew Horst, LLP 

 610 SW Alder Street, Suite 415 

 Portland, OR 97205 

 (971)229-1241 

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Case 3:16-cr-00051-BR Document 388 Filed 04/11/16 Page 5 of 28
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(The following excerpted proceedings were held on 

Wednesday, April 6, 2016; 10:52 a.m.) 

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

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?

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Case 3:16-cr-00051-BR Document 388 Filed 04/11/16 Page 6 of 28
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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.

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 the 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

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Case 3:16-cr-00051-BR Document 388 Filed 04/11/16 Page 7 of 28
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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

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. 

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Case 3:16-cr-00051-BR Document 388 Filed 04/11/16 Page 8 of 28
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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.

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

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Case 3:16-cr-00051-BR Document 388 Filed 04/11/16 Page 9 of 28
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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.

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

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Case 3:16-cr-00051-BR Document 388 Filed 04/11/16 Page 10 of 28
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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

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

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Case 3:16-cr-00051-BR Document 388 Filed 04/11/16 Page 11 of 28
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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

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

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Case 3:16-cr-00051-BR Document 388 Filed 04/11/16 Page 12 of 28
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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.

But here, I think there is some 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.

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Case 3:16-cr-00051-BR Document 388 Filed 04/11/16 Page 13 of 28
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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,

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.

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Case 3:16-cr-00051-BR Document 388 Filed 04/11/16 Page 14 of 28
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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

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

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Case 3:16-cr-00051-BR Document 388 Filed 04/11/16 Page 15 of 28
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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.

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

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Case 3:16-cr-00051-BR Document 388 Filed 04/11/16 Page 16 of 28
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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

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

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Case 3:16-cr-00051-BR Document 388 Filed 04/11/16 Page 17 of 28
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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

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

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Case 3:16-cr-00051-BR Document 388 Filed 04/11/16 Page 18 of 28
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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

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

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Case 3:16-cr-00051-BR Document 388 Filed 04/11/16 Page 19 of 28
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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.

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

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Case 3:16-cr-00051-BR Document 388 Filed 04/11/16 Page 20 of 28
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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.

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

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Case 3:16-cr-00051-BR Document 388 Filed 04/11/16 Page 21 of 28
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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

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

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Case 3:16-cr-00051-BR Document 388 Filed 04/11/16 Page 22 of 28
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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

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

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Case 3:16-cr-00051-BR Document 388 Filed 04/11/16 Page 23 of 28
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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

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

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Case 3:16-cr-00051-BR Document 388 Filed 04/11/16 Page 24 of 28
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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

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

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Case 3:16-cr-00051-BR Document 388 Filed 04/11/16 Page 25 of 28
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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

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.

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Case 3:16-cr-00051-BR Document 388 Filed 04/11/16 Page 26 of 28
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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

already indicated, and so I'm denying the motion to stay.

Mr. Bundy.

DEFENDANT RYAN BUNDY: Yes, your Honor. I

respectively 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 in 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? 

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Case 3:16-cr-00051-BR Document 388 Filed 04/11/16 Page 27 of 28
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(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

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.

(Conclusion of excerpt.)

--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 7th day of April, 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 

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Case 3:16-cr-00051-BR Document 388 Filed 04/11/16 Page 28 of 28