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’ MEMORANDUM IN 

SUPPORT OF ISSUING SUMMONS TO 

JURORS FROM THE ENTIRE 

DISTRICT OF OREGON (#547)

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

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

Assistant United States Attorneys, hereby responds to Defendants’ Memorandum in Support of 

Issuing Summons to Jurors from the Entire District of Oregon (ECF No. 547), filed by defendant 

Payne on behalf of all defendants.

Defendants seek an Order from this Court modifying the standard procedure for the 

selection of prospective jurors. While not unanimously backed by all defendants, defendants 

seek relief in the form of three variations to the existing plan for selecting jurors: (1) that the 

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Court order the jury administrator to summons jurors from each jury division; (2) that the Court 

order the jury administrator to summons jurors from the Pendleton Division; or, (3) that the 

Court order the jury administrator to summons jurors in a manner proportionate to the size of the 

Master Jury Wheel, as specified in the District’s Jury Management Plan (District Plan), Section 

2.02. 

Defendants’ requests for relief should be denied. Because issues of juror impartiality 

and fairness are addressed by Federal Rule of Criminal Procedure 24, the Court should order the 

summoning of jurors from the Portland Division in a manner consistent with the District Plan. 

I. The District of Oregon Jury Management Plan Requires that Jurors be Summonsed 

from the Portland Division

a. Background

Defendants are charged in the District of Oregon, Portland Division. The United States 

Attorney’s Office determines which division within the district charges a case and handles the 

prosecution. Defendants were charged in the Portland Division because their case is uniquely 

resource intensive. Defendants intimate that the government’s selection of the Portland 

Division was based on political considerations. (Def. Mem at 6). It was not—the government 

charged defendants in the Portland Division because it is the location with the personnel 

resources able to handle a case this large.1

 1 Defendants’ case would have been handled in the Eugene Division had the United States 

Attorney’s Office not elected to move it to Portland. Thus, defendants’ requested relief would not 

be consistent with the District Plan or standard practice even if their case was handled by the 

division to which it would normally be assigned. 

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b. No Legal Authority Supports Defendants’ Position

Defendants cite no controlling legal authority that supports their requests for relief. 

Indeed, there is none. As defendants acknowledge, 28 U.S.C. § 1861 provides that “all litigants 

in Federal court entitled to a trial by jury shall have the right to grand and petit juries selected 

from a fair cross section of the community in the district or division wherein the court 

convenes.” Courts have consistently held that a petit jury should be drawn only from one 

division and have rejected claims similar to defendants’. (See United States v. Herbert, 698 

F.2d 981, 984 (9th Cir. 1983), where the appellate court upheld the trial court’s finding that the 

district jury plan was constitutional, and had appropriately refused to transfer defendant’s case 

from the Phoenix Division to the Prescott Division, where a higher percentage of Native 

Americans resided).

Defendant argues that Fed. R. Crim. P. 18’s failure to address the issue of where jurors 

should be drawn from necessarily means that the Court has authority to issue summons from the 

entire District of Oregon. (Def. Mem at 5). Defendants’ interpretation of Rule 18 is 

misguided. Rule 18 is written solely to address the place of prosecution and trial, nothing more. 

Its silence on the issue of jury summons does not confer any unique authority on the Court. 

Defendants’ argument should be rejected.

c. The Jury Management Plan

The Jury Management Plan for the District of Oregon supports summonsing jurors from 

the Portland Division. This is the standard practice for a case charged in the Portland Division. 

Without any supporting objective evidence, what defendants seek is highly irregular—a 

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modification of existing practice to address a belief that the prospective jurors will not be fair 

and impartial. Defendants are attempting to modify the process to unfairly alter the 

demographic composition of the jury pool.

II. Defendants Will Receive a Fair Trial with Jurors Selected from the Portland Division

Defendants claim that the Court needs to summons jurors outside the Portland Division to 

guarantee a fair trial. As a threshold matter, defendants’ arguments are premature—fairness 

and impartiality are matters properly dealt with during the jury selection process, not during the 

process of summonsing jurors.2 Fed. R. Crim. P. 24 governs jury selection. Rule 24 endows 

the trial court and the parties with the authority to challenge and remove jurors to ensure the 

seating of a fair and impartial jury. (See, e.g., Swain v. Alabama, 380 U.S. 202, 218-19 (1965)

(“the function of challenge is not only to eliminate extremes of partiality on both sides, but to 

assure the parties that the jurors before whom they try the case will decide on basis of evidence 

placed before them, and not otherwise”); see also, United States v. Le Pera, 443 F.2d 810, 812 

(9th Cir. 1971) (a trial court has broad discretion in its rulings on challenges to prospective 

jurors)).

Defendants argue that the excessive pre-trial publicity also supports their request for 

relief. (Def. Mem at 5). First, defendants fail to explain how reconfiguring the process for 

summoning jurors would ameliorate any problems caused by juror exposure to pre-trial 

publicity. Second, extensive pre-trial publicity alone is not a reason to presume an absence of 

 2 As defendants note, they are separately evaluating a motion for change of venue. (Def.

Mem at 10). Defendants’ arguments in support of any motion to change venue should be

considered separately by the Court.

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impartiality. (See, e.g., United States v. Wilson, 732 F.2d 404, 410 (5th Cir. 1984), in 

prosecution of defendant charged with conspiracy and substantive counts arising out of an illegal 

shipment of plastic explosives to Libya, trial court did not abuse its discretion when it refused to 

excuse for cause a challenged juror who had seen a television broadcast about defendant but 

expressly assured that any prior media exposure would not affect his ability to serve impartially.)

Defendants next argue that their chances of receiving a fair trial are undermined because 

of the political demographics of the Portland Division. (Def. Mem at 8-10). Defendants’ 

reliance on partisan, political data to support their requests for relief is extraordinary. The jury 

process is, and should be, politically secular. Defendants are seeking to politicize it by asking 

this Court to draw inferences about the likely behaviors of prospective jurors with little more 

than voter registration data. The Court should give no weight to this argument.

Even if the Court were to assign some weight to defendants’ argument, their claims are 

legally unfounded. In order to establish a prima facie violation of the fair-cross-section 

requirement, the defendant must show (1) that the group alleged to be excluded is a “distinctive” 

group in the community; (2) that the representation of this group in venires from which juries are 

selected is not fair and reasonable in relation to the number of such persons in the community; 

and (3) that this underrepresentation is due to systematic exclusion of the group in the 

jury-selection process. Duren v. Missouri, 439 U.S. 357, 364 (1979). Defendants’ motion 

fails all three of these prerequisites: democrats, republicans, and libertarians are not 

“distinctive” groups within this community; even accepting their numbers demonstrates that at 

least the two major parties are in fact represented in the relevant jury pool; and nothing in the 

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district’s plan suggests or even hints that any member of any particular political party has been 

systematically excluded from the jury selection process. Finally, all of defendants’ requests for 

relief overlook a significant consequence: forcing jurors to travel from across the state for a 

three-month trial would be problematic.

III. Conclusion

Defendants have failed to demonstrate any sound legal or factual basis to deviate from 

the existing District Plan for summoning jurors. Their requests for relief should be denied.

Dated this 20th day of May 2016. 

Respectfully submitted,

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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