IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

UNITED STATES OF AMERICA, )

) Case No. 3:16-CR-0051-BR 

 Plaintiff, ) 

) 

v. ) May 4, 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), ) 

TRAVIS COX (24), ) 

ERIC LEE FLORES (25), ) 

JAKE RYAN (26), ) 

) 

 Defendants. ) 

__________________________________) Portland, Oregon 

TRANSCRIPT OF PROCEEDINGS

(Oral Argument) 

BEFORE THE HONORABLE ANNA J. BROWN, DISTRICT JUDGE 

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 1 of 94
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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: 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 

JON RITZHEIMER: AMY BAGGIO 

 (Appearing for Ms. Terri Wood) 

 621 SW Morrison, Suite 1025 

 Portland, OR 97205 

 (503)222-9830 

FOR DEFENDANT JOSEPH 

O'SHAUGHNESSY: AMY BAGGIO 

 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 

 

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 2 of 94
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APPEARANCES: (continuing) 

FOR DEFENDANT RYAN 

BUNDY: RYAN BUNDY 

 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 SHAWNA COX: 

(defendant present LISA LUDWIG 

telephonically) (Appearing for Ms. Tiffany Harris) 

 811 SW Naito Parkway, Suite 500 

 Portland, OR 97204 

 (503)223-5570 

FOR DEFENDANT PETER 

SANTILLI: THOMAS COAN 

(defendant present 1000 SW Fifth Avenue, Suite 1400 

by videoconference) Portland, OR 97204 

 (503)221-8736 

 

FOR DEFENDANT JASON 

PATRICK: ANDREW KOHLMETZ 

 Raivio, Kohlmetz & Steen, PC 

 741 SW Lincoln Street 

 Portland, OR 97201 

 (503)224-1104 

FOR DEFENDANT DUANE 

EHMER: DAVID AUDET 

 249 NE Lincoln 

 Hillsboro, OR 97124 

 (503)648-3020 

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 3 of 94
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APPEARANCES: (continuing) 

FOR DEFENDANT DYLAN 

ANDERSON: SAMUEL KAUFFMAN 

(not present) Kauffman Kilberg, LLC 

 1001 SW 5th Avenue, Suite 1414 

 Portland, OR 97204 

 (503)224-2595 

FOR DEFENDANT SEAN 

ANDERSON: TYL BAKKER 

 (Appearing for Mr. Matthew McHenry) 

 621 SW Alder Street, Suite 621 

 Portland, OR 97205 

 (503)721-0140 

FOR DEFENDANT DAVID 

FRY: PER OLSON 

 Hoevet Olson Howes, PC 

 1000 SW Broadway, Suite 1500 

 Portland, OR 97205 

 (503)228-0497 

FOR DEFENDANT JEFF 

BANTA: ROBERT SALISBURY 

(not present) 330 South 1st Street 

 PO Box 1272 

 St. Helens, OR 97051 

 (503)397-9000 

FOR DEFENDANT SANDRA 

ANDERSON: TYL BAKKER 

(not present) 621 SW Alder Street, Suite 621 

 Portland, OR 97205 

 (503)721-0140 

FOR DEFENDANT KENNETH 

MEDENBACH: KENNETH MEDENBACH 

 Pro Se 

 25795-086 

 MATTHEW SCHINDLER 

 Standby Counsel 

 501 4th Street #324 

 Lake Oswego, OR 97034 

 (503)699-7333 

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 4 of 94
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APPEARANCES: (continuing) 

FOR DEFENDANT BLAINE 

COOPER: KRISTA SHIPSEY 

 820 SW 2nd Avenue, Suite 275 

 Portland, OR 97204 

 (503)309-9024 

FOR DEFENDANT WESLEY 

KJAR: JAMES HALLEY 

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

 Portland, OR 97204 

 (503)295-0301 

FOR DEFENDANT COREY 

LEQUIEU: PAUL HOOD 

 (Appearing for Mr. Ramon Pagan) 

 Paul Hood, Attorney at Law, LLC 

 1001 SW 5th Avenue, Suite 1415 

 Portland, OR 97204 

 (541)513-7545 

FOR DEFENDANT NEIL 

WAMPLER: LISA MAXFIELD 

(not present) Pacific Northwest Law, LLP

 1420 World Trade Center 

 121 SW Salmon 

 Portland, OR 97204 

 (503)222-2661 

FOR DEFENDANT JASON 

BLOMGREN: ROBERT RAINWATER 

(not present) Rainwater Law Group 

 1327 SE Tacoma, Suite 239 

 Portland, OR 97202 

 (971)271-7566 

FOR DEFENDANT DARRYL 

THORN: LAURIE SHERTZ 

(not present) 121 SW Salmon Street, 11th Floor 

 Portland, OR 97204 

 (503)406-2136 

 

FOR DEFENDANT GEOFFREY 

STANEK: BEN ANDERSEN 

(not present) 101 SW Madison Street, #9068 

 Portland, OR 97207 

 (503)860-2531 

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 5 of 94
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APPEARANCES: (continuing) 

FOR DEFENDANT TRAVIS 

COX: PAUL HOOD 

 Paul Hood, Attorney at Law, LLC 

 1001 SW 5th Avenue, Suite 1415 

 Portland, OR 97204 

 (541)513-7545 

FOR DEFENDANT ERIC 

FLORES: NEDU NWEZE 

(not present) (Appearing for Mr. Ernest Warren) 

 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 

ALSO PRESENT: DERRICK PETERSON 

 KATIE BURGARD 

 KRAIG ANSPACH 

(by videoconference) CHRIS RASMUSSEN 

 

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 6 of 94
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(Wednesday, May 4, 2016; 9:30 a.m.) 

P R O C E E D I N G S 

THE COURT: Good morning, everyone. Please be

seated.

Good morning, your Honor.

THE COURT: Before we begin, I want to remind

everyone that we have important work to do today, and it's

among my duties to ensure that we have an accurate record of

the proceedings.

It's very difficult for the court reporter to take a

record if more than one of us is speaking at a time. So here

are the rules for today and every day that we're in session.

Only one person can be speaking at a time. If

counsel or Mr. Bundy, you representing yourself, or

Mr. Medenbach, you representing yourself, if you're interacting

with me, I'll do my best not to speak on top of you. And I

expect counsel will help and do the same with me. We need a

very clear record.

Everyone else in the room, those of you observing in

the back, those of you who are represented by counsel, must

remain quiet. Must remain quiet. If you don't, you'll have to

leave the room, whether you're a defendant or an observer.

Things just need to be quiet in order that we can conduct the

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 7 of 94
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proceedings.

I'll recognize people, so you know when to speak.

And, as I say, I'll do my very best not to talk on top of you,

if you hopefully will do the same with me.

Because cell phones that are powered on interfere

with our sound system, Counsel, please check now to be sure any

cell phone you brought in the room is turned off.

Counsel for the --

MR. COAN: Pardon me, your Honor.

Mr. Santilli is down in Nevada. I think the only way

I may be able to communicate with him or his attorney there is

by text messaging, so I would ask the leave of the Court to

allow my phone to remain on.

THE COURT: Let me think about that.

Let me finish what I was doing.

For those of you who represent people who are out of

custody, if by chance your client has brought a cell phone into

the room, please take it and ensure, Counsel, personally that

the phone is off and keep it during the course of the

proceedings, and then we'll continue.

Counsel who have laptops on, please ensure that you

are not accessing the Internet in a way that your clients are

accessing the Internet during this court proceeding. It's not

permitted.

Finally, I believe we have Ms. Cox, again, by

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 8 of 94
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telephone connection. I want to remind her not to make any

audio recording of the proceedings.

Mr. Coan, you were able to confirm that Mr. Santilli

is observing?

MR. COAN: No, I was not.

THE COURT: Not yet?

MR. COAN: I have not been able to confirm that.

MR. NEWBY: (Nods head.)

MR. RASMUSSEN: Your Honor, can you hear us?

THE COURT: Who is speaking, please?

MR. RASMUSSEN: This is Chris Rasmussen. I'm an

attorney in Nevada. I'm sitting next to Peter Santilli, in a

courtroom in Las Vegas.

THE COURT: Excellent. Can you hear me?

MR. RASMUSSEN: I can very well, Judge. Thank you.

THE COURT: Thank you, Mr. Rasmussen. 

And good morning, Mr. Santilli.

DEFENDANT SANTILLI: Good morning, your Honor.

THE COURT: With respect to microphones, when you're

not speaking, Counsel, please ensure they're off. Because when

you're whispering and conferring with your client, if the

microphone is on, it carries over and it disturbs the

proceedings. When you speak, please turn it on, so that we can

go forward.

Now, with that, I'm going to ask Mr. Knight to call

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 9 of 94
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the case. And after that, I'm going to take a matter out of

order because I want to address -- while I have the presence of

Captain Derrick Peterson, from the Multnomah County jail here,

I want to address the issues about access and confinement

concerns that were raised so that we can get a dialogue

concluded and get those issues resolved.

Mr. Knight.

MR. KNIGHT: Thank you, your Honor. Good morning,

your Honor. 

We're present today in the matter of the United

States versus Ammon Bundy, et al.

This is Case No. 16-CR-00051.

Ethan Knight and Geoff Barrow appearing today on

behalf of the United States.

Appearing today in the courtroom, in order, are as

follows, your Honor.

Defendant Ammon Bundy is present with counsel Lissa

Casey and Mike Arnold.

Defendant Jon Ritzheimer is present in the courtroom.

Standing by on his behalf today is counsel Amy Baggio.

Defendant Joseph O'Shaughnessy is present in the

courtroom with counsel of record Amy Baggio.

THE COURT: Welcome back, sir.

MR. KNIGHT: Defendant Ryan Payne is present in the

courtroom with counsel Rich Federico.

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 10 of 94
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THE COURT: Good morning.

MR. FEDERICO: (Nods head.)

MR. KNIGHT: Defendant Ryan Bundy is appearing on his

own behalf today with standby counsel Lisa Ludwig.

DEFENDANT RYAN BUNDY: (Standing.)

MR. KNIGHT: Defendant Brian Cavalier is present in

the courtroom with counsel Todd Bofferding.

THE COURT: Good morning.

MR. KNIGHT: Defendant Shawna Cox has waived her

personal appearance and is appearing by phone today. She is

assisted by Ms. Ludwig in today's matter.

THE COURT: Because her counsel is unavailable today.

MR. KNIGHT: That's right, your Honor.

MS. LUDWIG: And, your Honor, I would like to make

the same request that Mr. Coan made.

THE COURT: Could you please turn on the microphone.

MS. LUDWIG: Sure. I would like to make the same

request that Mr. Coan made with regard to being able to text

Ms. Cox or receive a text from her if she has a question or

something she needs addressed.

THE COURT: All right. After we complete the

recitations, we'll address that issue.

MR. KNIGHT: Your Honor, Defendant Peter Santilli is

present by videoconference in the District of Nevada today.

His counsel of record, Tom Coan, is present in the

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 11 of 94
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courtroom today.

MR. COAN: Morning.

THE COURT: And as we noted, Mr. Rasmussen, who

represents Mr. Santilli in Nevada, is with him in person, in

Nevada.

MR. KNIGHT: Thank you. 

Defendant Jason Patrick is present in the courtroom

today with counsel Andrew Kohlmetz.

MR. KOHLMETZ: Good morning, your Honor.

DEFENDANT PATRICK: Good morning, your Honor.

THE COURT: Good morning, gentlemen.

MR. KNIGHT: Defendant Duane Ehmer is present in the

courtroom today with counsel Dave Audet.

THE COURT: Good morning.

MR. KNIGHT: Defendant Dylan Anderson has waived his

personal appearance. Appearing on his behalf today is counsel

of record Sam Kauffman.

MR. KAUFFMAN: Good morning, your Honor.

MR. KNIGHT: Defendant Sean Anderson is in the

courtroom today. Appearing on his behalf today is counsel Tyl

Bakker.

Counsel of record, Matthew McHenry, is not available

today.

THE COURT: He's next door or upstairs, I understand,

in trial.

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 12 of 94
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MR. BAKKER: Correct, your Honor.

THE COURT: All right. Good morning, sir.

MR. KNIGHT: Defendant David Fry is present in the

courtroom today with counsel of record Per Olson.

MR. OLSON: Good morning, your Honor.

THE COURT: Good morning, gentlemen.

MR. KNIGHT: Defendant Jeff Banta has waived his

personal appearance today. His counsel of record, Robert

Salisbury, is present in the courtroom.

MR. SALISBURY: Good morning, your Honor.

MR. KNIGHT: Defendant Sandra Anderson has waived her

personal appearance today. Counsel of record, Tyl Bakker, is

present in the courtroom.

Defendant Kenneth Medenbach is present in the

courtroom, representing himself with standby counsel Matthew

Schindler.

THE COURT: Good morning, gentlemen.

MR. KNIGHT: Defendant Blaine Cooper is present in

the courtroom today with counsel of record Krista Shipsey.

THE COURT: Good morning.

MS. SHIPSEY: (Nods head.)

MR. KNIGHT: Defendant Wesley Kjar has waived his

personal appearance today, your Honor. Counsel of record James

Halley is present in the courtroom.

MR. HALLEY: Good morning, your Honor.

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 13 of 94
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THE COURT: Good morning.

MR. KNIGHT: Defendant Corey Lequieu is present in

the courtroom today.

DEFENDANT LEQUIEU: (Standing.)

MR. KNIGHT: Appearing on his behalf today is counsel

Paul Hood. Counsel of record Ramon Pagan is not available

today.

THE COURT: All right. So, Mr. Lequieu, you see

Mr. Hood there.

DEFENDANT LEQUIEU: Yeah.

THE COURT: If there's an issue, just let us know if

you need to speak with him. All right?

DEFENDANT LEQUIEU: (Nods head.)

MR. HOOD: Thank you.

THE COURT: Thank you, Counsel.

MR. KNIGHT: Defendant Neil Wampler has waived his

appearance at today's hearing. Counsel of record Lisa Maxfield

is present in the courtroom.

THE COURT: Counsel.

MR. KNIGHT: Defendant Jason Blomgren has waived his

personal appearance today.

Counsel of record Robert Rainwater is present in the

courtroom.

THE COURT: Good morning.

MR. RAINWATER: Good morning.

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 14 of 94
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MR. KNIGHT: Defendant Darryl Thorn has waived his

personal appearance today, your Honor. Counsel of record

Laurie Shertz is present in the courtroom.

MS. SHERTZ: Good morning, your Honor. My client has

asked that I make clear he's only waived appearance for today.

He would like to be present at future status conferences.

THE COURT: Yes. Well, one assumes that. These

waivers are appearance specific, as I hoped I made clear

earlier.

MS. SHERTZ: And I did, but the request was made.

Thank you, Judge.

THE COURT: And it's noted. Thank you, Ms. Shertz.

MR. KNIGHT: Defendant Geoffrey Stanek is present in

the courtroom today.

MR. ANDERSEN: He's actually waived his appearance.

MR. KNIGHT: Okay. Pardon me. He has waived his

appearance at today's hearing. Counsel of record Benjamin

Andersen is present on Mr. Stanek's behalf.

THE COURT: Good morning.

MR. KNIGHT: Defendant Travis Cox is present today

with counsel of record Paul Hood.

MR. HOOD: Good morning, your Honor.

THE COURT: Good morning.

MR. KNIGHT: Defendant Eric Flores has waived his

personal appearance today. Mr. Warren, counsel of record, is

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 15 of 94
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not present. Appearing on behalf is counsel Nedu Nweze.

THE COURT: Thank you.

Good morning, sir.

MR. NWEZE: Good morning.

MR. KNIGHT: Defendant Jake Ryan is present in the

courtroom today with counsel of record Jesse Merrithew.

MR. MERRITHEW: Good morning.

THE COURT: Gentlemen.

MR. KNIGHT: Thank you, your Honor.

THE COURT: All right. Is there any concern,

Mr. Knight, from the Government's perspective, with Ms. Ludwig

and Mr. Coan texting for the purposes they indicated?

I don't see that it would interfere with the audio

issues I was concerned about.

MR. KNIGHT: No concern from the Government.

THE COURT: Counsel, do what you need to do, then.

MR. COAN: Thank you.

THE COURT: All right. As I noted, I wanted to take

out of the order, identified on the joint status report No.

488, a subject about which I sought input from the Multnomah

County corrections folks. And, in particular, we have a

witness in the courtroom, Captain Derrick Peterson.

Item 10 on the agenda, docket -- not agenda, the

status report No. 488 is titled, Effective Pretrial Detention.

And it was subtitled, "Custodial status of the defendants and

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 16 of 94
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the effect of transporting them between judicial districts."

I'll take that up, to the extent I need to, later.

Monitoring of attorney-client phone calls in Nevada.

Again, that is a matter that doesn't concern Captain Peterson.

But Item C and D: In-custody defendants' access to

materials to assist in their defense and solitary confinement

as an impediment to self-representation were raised.

As I understand it, Ms. Ludwig, Mr. Arnold, and

Mr. Federico all wanted to make general comments about this.

Let me tell you what I've done, already. I did meet

with our U.S. marshals, and impressed upon them the fact that

these issues must be solved.

I asked the marshal to invite a responsible

representative of the sheriff's office, and Captain Derrick

Peterson is here.

And with him are Katie Burgard, who is the program

administrator and is in charge of access to the law library,

and then one other person.

I understood from Captain Peterson, Mr. Arnold, that

there was already communication started between your office and

the jail to try to resolve some issues, and that there might

even be a meeting already planned for today between you and a

representative of the jail. Is that --

MR. ARNOLD: That's correct, your Honor.

Captain Peterson, myself, Lisa Ludwig, and possibly

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 17 of 94
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Ryan Bundy are going to meet with him at one o'clock today.

THE COURT: All right. And so to the extent these

issues around self-representation might also involve

Mr. Medenbach's access, I don't know, Counsel, whether you're

free but could be available to meet with them, too.

What I'm hoping can happen is that there can be a

thorough dialogue through and potentially just solving the

issue -- issues around access, and the like. And then if

there's a dispute that can't be resolved to the satisfaction of

the parties and with respect to --

Where did the captain go?

CAPTAIN PETERSON: (Hand raised.)

THE COURT: Oh, there he is.

With respect to the requirements of the jail, then

the matter could be brought to me on formal motion.

Are you able to participate, Counsel?

DEFENDANT MEDENBACH: I -- 

MR. SCHINDLER: Do you want to speak?

DEFENDANT MEDENBACH: I tried to.

THE COURT: Can you turn on your microphone,

Mr. Medenbach, please.

DEFENDANT MEDENBACH: I tried to access the law

library there, and then getting time out of -- right now I'm

locked down. For only two hours, I get to get out. And it's

not much time to do things I want to do. If the Court could

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 18 of 94
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negotiate a way so I could get out more often and plus get to

the law library.

THE COURT: Right. So what I'm understanding -- yes,

Mr. Bundy.

DEFENDANT RYAN BUNDY: The meeting that we're talking

about, you know, being that I am pro se, I do want to attend

that meeting personally, not my standby counsel. She's okay to

be there with me, but I -- I want to be there.

THE COURT: I understand you want to be there.

Captain, where is the meeting planned to be?

MR. PETERSON: It will be at --

THE COURT: Would you stand. And we need a

microphone, please, for him. Once we can turn it on.

It takes -- how many lawyers does it take to turn on

a microphone?

(Laughter.)

THE COURT: Captain, yes, sir.

MR. PETERSON: Yes, it will be at the detention

center.

If I'm able to have Ryan Bundy in the meeting, we'll

have to figure a place within the secure fine -- confines of

the facility.

THE COURT: It would be very helpful if that could

happen, along with Mr. Medenbach, also.

It -- except -- hold on a minute. One at a time.

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MR. KOHLMETZ: Yeah.

THE COURT: Is Mr. Medenbach housed at MCDC, or not?

MR. SCHINDLER: Yes, he is, your Honor.

THE COURT: I'm sorry?

MR. SCHINDLER: Yes, he is, your Honor.

THE COURT: So let me ask this, Captain.

Do your best to see if those who are expressing

interest can all be present, including Ryan Bundy and

Mr. Medenbach.

If that can't happen, then standby counsel must do

their job to convey back. But it would be best if you heard

from Ryan Bundy personally what his issues are and what his

needs are. The same with Mr. Medenbach with respect to his.

And if, as I say, an issue -- the issues cannot be

resolved, then what I want is a joint report back from counsel.

Perhaps one of the prosecutors wants to attend the session,

too, but it's primarily between the defendants and the

sheriff's office about this.

If -- if an issue remains, then I would like a joint

report identifying what the issues are and what the proposed

solutions are and the bases for them.

Would that work, Mr. Arnold, from your perspective,

to advance the issue?

MR. ARNOLD: Yes, your Honor. Just a couple of minor

items. I'm okay with being in a contact room, all cramped and

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uncomfortable. That's fine -- fine with me, if it's okay with

the jail.

And also one thing we didn't add was I -- I have

recent concerns about particularly Ammon and Ryan's rations.

And since I -- since they've been back from Nevada.

THE COURT: I don't know what you mean by "rations."

MR. ARNOLD: Food. They look thin and emaciated.

Based upon -- I just want to put on the record they look

different than when the left for Nevada. They look like

they've lost weight. I don't know if there's a mechanism for

comparing their weight. But if they could be increased

rations, that would be great.

THE COURT: Why -- why don't you --

MR. ARNOLD: I'll talk about that, too.

THE COURT: Thank you, sir. 

All right. Mr. Federico, you haven't spoken on the

issue but your name was on it. Does this address it, from your

perspective?

MR. FEDERICO: Your Honor, Mr. Payne is actually

housed at the Inverness jail. So it's a separate issue. 

Upon from return from Nevada -- I don't know if his

classification status was changed, so that he and others at

Inverness jail have now been given keep-separate orders, such

that their counsel are not permitted to meet with them in

contact room or noncontact room paper pass at any time when

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another counsel is there meeting with their client. And since

there are a number of them there, what ends up happening is you

show up to meet with your client, and they just can't move them

because of the keep-separate order. And I know, for example,

Ms. Shipsey has -- and Mr. Cooper have the same problem, where

the investigator will come up and spend a couple of hours

waiting and never get to see their client.

I spoke to the staff, the officer in charge at

Inverness yesterday about this issue. My understanding is it's

not a U.S. Marshal's issue. It is when booked in the justice

center. And they were going to take a look at that

classification. Because the true intent, I understand, was to

keep them separate in the dorms where they live but not to

deprive access to counsel. So we're going to engage with the

jail on that issue.

Likewise, if the Court would allow, if it's

unresolved, we can put that in a joint status report.

THE COURT: Or earlier, if there's an issue. But,

yes. I want to -- I have conveyed, in the clearest terms I

know, to both the United States Marshal and to the sheriff's

office, the -- the need, without upsetting and without

infringing and without affecting the orderly operations of the

jail, the need of the parties to access their lawyers; to see

information on a computer, if that's the way to do it; to have

writing utensils that write.

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I understand that if -- everyone is supposed to have

one in the MCDC. They're flexible pens, I'm told. If they're

used up, then the person is to ask for another.

I'm told that every inmate is entitled to six hours a

week in the law library. But if that's not enough, there needs

to be some discussion, starting this afternoon, about

increasing that for -- on a particular showing.

And then I want to hear back if there's an issue that

the Court should address, as opposed to trying to resolve this.

Now, I'll get to you in just a second, Mr. Kohl --

oh, Mr. Kohlmetz, you were standing on this? But -- no?

MR. KOHLMETZ: Well, Mr. Federico raised my issue.

We've had the same experience.

Mr. Patrick would also like to be included in the

discussions. It is his intent to file a motion with the Court

to go pro se.

THE COURT: He's going to have to wait. Let me just

address that point.

I did get a message, Mr. Patrick, this morning that

you do wish to have what's called a Faretta hearing to

determine whether you can proceed without -- as -- as your own

lawyer.

The message also indicated that you did not want

standby counsel, and you need to know that those two do not go

together. Everyone who is representing himself will have

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standby counsel.

If you wish me to engage in that colloquy with you

and consider it, then you and Mr. Kohlmetz should file a

motion, and I'll get it scheduled as soon as we can.

MR. KOHLMETZ: We're just waiting for a form to come

back from the FPD, your Honor. I'll file it as soon as I get

the form.

DEFENDANT PATRICK: And I don't consent to standby

counsel.

THE COURT: You don't have to consent, sir. I'm just

telling you what the parameters are going to be so you know in

advance what to expect at the hearing. You don't have to

consent.

All right. Thank you, Mr. Kohlmetz.

Now, then back to this issue involving the sheriff's

captain and the others from the jail who are here. They have

other work to do.

Is there anything we need to address on the record

right now with them? Otherwise, I'll excuse them. I'll --

I'll wait for a report back on the subject after conferral.

MR. ARNOLD: And, your Honor, just by way of proffer,

so it's on the record, I've been writing with this --

THE COURT: Slow down, please.

MR. ARNOLD: Just by way of proffer, for the record,

this is the pen (indicating) that they get to use. It's a

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flexible pen. And I've written three sentences. And it's

uncomfortable, it bends, you cannot get a good angle on the

paper. And I can understand and sympathize with them, why this

is an inadequate situation. I just wanted to show the Court

the pen (indicating).

THE COURT: I understand. I also understand there's

a basis for the rule. So -- I'm not going to be able to change

all of the jail's rules, and I'm not here to do that.

What I'm trying to do is to ensure there's

opportunity for meaningful communication to try to address some

of these issues, so that we -- we can proceed.

All right. On this subject, then, the effect of --

the issues around the Multnomah County detention, is there

anything else we need to raise before I excuse the Multnomah

County representatives? Because they do have other things to

do.

All right. Thank you very much.

Mr. Arnold, I'm going to put you in charge of

generating any joint status report that asks the Court to make

a specific ruling. And, in any event, a joint report that

tells me what the outcome is.

MR. ARNOLD: Yes, your Honor. Thank you.

THE COURT: We'll set a deadline for that, once I get

to the end of process.

I'll just also note with respect to Items A and B on

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this effect of pretrial detention issues, the effect of the

transport, and the issues of attorney-client phone calls in

Nevada, I believe those are concerns that -- the

attorney-client phone calls in Nevada are concerns. To the

extent they persist, they have to be raised first with the

court in Nevada. I'm not in a position to correct or monitor

what's going on there. I do understand these are impacts that

the parties want me to keep in mind, especially as we go

forward and consider the motion to dismiss that particularly

raises the issue of the ongoing prosecution in Nevada and its

counterpart in Nevada.

So I expect you'll be telling me about those things

in more detail, then, in conjunction with that motion. But I

don't believe they require any more discussion here.

I did want to note, Ms. Baggio, that this was a

concern of yours, the attorney-client -- monitoring of the

telephone conversations. And I am glad to see your client is

here and you're able to interact with him personally.

So if there's an issue you think that pertains to the

Oregon situation, you'll let me know. Otherwise, we'll move

on.

MS. BAGGIO: Very well.

THE COURT: Thank you.

So I did have a note -- and I did just address this

with Mr. Patrick -- about your wanting to have the Court

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consider allowing you to represent yourself. And so

Mr. Kohlmetz and you will file the necessary paper. We'll get

a hearing scheduled for that.

MR. KOHLMETZ: Yes, your Honor.

THE COURT: Now, Mr. Audet.

I received a message, as well, that your client

wishes to represent himself; or wishes another lawyer, or

something.

To the extent there is an issue, a motion needs to be

filed. It will be docketed for a separate hearing.

MR. AUDET: Understood.

THE COURT: Mr. Ehmer, does that make sense to you?

Do you understand?

DEFENDANT EHMER: Yes, ma'am.

THE COURT: Very good.

(Pause, referring.)

THE COURT: All right. Mr. O'Shaughnessy does need

to be arraigned on the Superseding Indictment, and so let's

proceed with that.

Ms. Baggio.

MS. BAGGIO: Thank you, your Honor.

At this time we would acknowledge receipt of the

charging instrument, proceed as named, waive further reading

and advice of rights, and enter a not guilty plea. We would

request and accept the trial date previously scheduled for the

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 27 of 94
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other defendants.

THE COURT: Thank you.

Mr. O'Shaughnessy, do you understand all of the

statements your lawyer made on your behalf?

DEFENDANT O'SHAUGHNESSY: Yes, your Honor.

THE COURT: All right. Those representations will be

entered. A not guilty plea will be entered. The Court's

finding of excludable delay previously made because the case is

complex applies equally to Mr. O'Shaughnessy. His jury trial

date, then, is 9-7-16, and I'm finding excludable delay for him

through that date.

Anything else on that point?

MS. BAGGIO: (Shakes head.) Thank you.

THE COURT: Thank you very much.

Now, on the agenda was an issue involving Mr. Flores'

and Mr. Warren's conflicts with the trial date.

Counsel, did you want to address that, or did you

want to wait until Mr. Warren was available personally to do

that?

MR. NWEZE: Yes, your Honor.

I would wait until Mr. Warren was personally

available --

THE COURT: All right.

MR. NWEZE: -- to handle that.

THE COURT: All right. We'll be in touch with him to

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raise it.

MR. NWEZE: Yes. Thank you.

THE COURT: All right. And then Mr. Hood.

You and Mr. Cox I would like to address for a moment,

please.

With respect to the trial date, his case --

Mr. Cox -- can you hear me?

All right. As I understand it, when Mr. Cox was

arraigned, there was an issue raised about the trial date I've

already set. And if that needs to be addressed, I would like

to hear about it now, please.

MR. HOOD: No, your Honor.

We just -- as -- Mr. Knight was present as well. The

discussion was simply whether or not the Court would -- we

would wait for the Court's ruling -- your ruling on the

question of the complexity of the case.

My assumption is -- I've discussed with my client, is

that the Court would make the same ruling in this situation as

it has with the other defendants in the case.

THE COURT: It hasn't gotten any less complex with

your clients joining and being here now.

So, yes, the same finding made with respect to the

other defendants -- just confirmed as to Mr. O'Shaughnessy --

now applies to Mr. Cox. I am finding excludable delay, based

on complexity, for him and setting his trial as well for

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 29 of 94
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9-7-16. 

MR. HOOD: (Nods head.)

THE COURT: Thank you.

MR. HOOD: Thank you, your Honor.

THE COURT: All right. The next item on the agenda. 

Mr. Olson, you had a motion, and then I got a message

that you wanted to wait on my addressing it until you had

further conferral, or something.

MR. OLSON: I believe the Government --

THE COURT: Do you have your microphone on, please.

MR. OLSON: I believe the Government intends to file

a response to that motion.

THE COURT: All right.

MR. OLSON: And -- by May 16th.

THE COURT: Could we hear it, then, on -- at the May

23 time block?

MR. OLSON: Yes. If that's okay with the Court, that

would be good.

THE COURT: We're going to fit all of this in at some

point.

So I'll ask the clerk to note, then, the Government

will respond in writing to Mr. Olson's motion on Mr. Fry's

behalf. That's Docket 493.

Was it May 16, Mr. Knight?

MR. KNIGHT: Yes, your Honor. Thank you.

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THE COURT: All right. May 16. No replies. We'll

fit it in for hearing in the block of time currently reserved

for -- beginning May 13.

Ms. Maxfield, with respect to a forthcoming motion,

as I understand it, on 404(b) issues.

MS. MAXFIELD: Yes, your Honor. We would ask the

Court to kick that down the road a little bit. Maybe to the

next status conference.

THE COURT: All right.

MS. MAXFIELD: I think it really goes to a motion to

sever, and we don't have dates on that yet.

THE COURT: Correct.

So this larger question -- and I think, Mr. Halley,

you have the Bruton issue. Is that right?

MR. HALLEY: Yes, your Honor.

THE COURT: I think it -- it is, in terms of

management, a similar issue to 404(b) issues. It has to do

with what evidence will be admissible against whom and in what

context in trial. And the complexity of that would vary,

depending upon who's in the trial where the evidence is being

proffered.

Fair?

MR. HALLEY: Agreed, your Honor.

THE COURT: All right. So Ms. Maxfield is suggesting

the 404(b) issue needs -- needs a little more time to develop.

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 31 of 94
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I'm thinking the Bruton issues do too. But part of that is

driven by the question as to who. And that, in turn, is driven

by this question of motions to sever and potentially, for

example, Mr. Warren's renewed motion to continue, and -- who

was it? Where's Mr. Bakker?

MR. BAKKER: Here, your Honor.

THE COURT: Mr. Bakker, you filed a waiver of speedy

trial on your client's behalf. Didn't call it a motion to

continue, but it -- it felt like one.

And so we -- I think -- are going to be coming to a

place where there needs to be clarity as to whether any

defendant affirmatively seeks to be excluded from the September

17 trial date either because of severance or because of any

other reason leading that client to choose to waive.

Now, is your client still of a mind that your client

wants to waive speedy trial rights, consistent with what was

filed?

MR. BAKKER: That is correct, your Honor.

We're also intending to file a motion to sever, and

requesting a different trial date on other bases.

I guess my concern with the 404 issue raised by

Ms. Maxfield is I need that information in order to

effectively, I think, argue my motion to sever, as well as

co-conspirator statements that the Government may be intending

to offer. So I'm a little concerned about delaying that. I

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 32 of 94
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would like to get my motion to sever filed.

THE COURT: Well, let me ask this. If your client

moved to continue because your client wanted to continue and

did not want to go to trial on September 7th, and was waiving

speedy trial rights on September 7, I don't know how that

motion would be resolved until it was considered. But if it

was granted, then those issues of timing would wait.

MR. BAKKER: Correct.

THE COURT: All right. So that's your current

assessment with your client as of now?

MR. BAKKER: Yes.

THE COURT: Your client is out of custody?

MR. BAKKER: She is.

THE COURT: Are there any other lawyers who have

clients out of custody, whether the out-of-custody client is

present here or not, who presently have a view similar to

Mr. Bakker's with respect to the September 7th trial date? 

Mr. Rainwater.

MR. RAINWATER: I do on behalf of Mr. Blomgren, your

Honor. He would be willing to waive time, and we would ask for

a later trial date.

THE COURT: I'm not taking that as a request right

now.

MR. RAINWATER: I understand.

THE COURT: I'm trying to get a sense of how to

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 33 of 94
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manage this, based on people's perspectives at this point.

So you and Mr. Bakker have a similar view in that

context?

MR. RAINWATER: Yes.

THE COURT: All right. Is there another lawyer who

wants to be acknowledged on that front?

Ms. Baggio.

MS. BAGGIO: Thank you, your Honor.

On behalf of Ms. Wood -- and I understand that is an

issue that she and her client are currently discussing, and

they may also seek a later trial date.

THE COURT: Mr. Ritzheimer.

MS. BAGGIO: Yes, that's correct.

THE COURT: All right. So that's three.

Is there anyone else, potentially?

MR. KAUFFMAN: Your Honor, on -- there are a number

of out-of-custody clients who, I think, may ultimately be in

that position. But are -- until recently, we're not prepared

to broach that because of the Court's ruling.

THE COURT: I'm not committing anybody --

MR. KAUFFMAN: Right.

THE COURT: -- to any position right now.

I'm simply inquiring whether there is some community

of thought along the lines Mr. Bakker has expressed for his

client; and now Mr. Rainwater has expressed for his; and

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 34 of 94
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potentially Ms. Wood is expressing for hers.

MR. KAUFFMAN: Right. And, your Honor, the Court

asked us to -- by e-mail, to try to reach some consensus about

when we think a motion deadline would be. And I e-mailed the

out-of-custody group and got basically no responses on that

regard. So I don't --

THE COURT: Do you have an opinion when that would be

a viable decision to make?

MR. KAUFFMAN: The most -- the best that I can do is

to -- is to suggest that it be made in advance of the deadline

for the round 2 motions because I think there's some reliance

on collaboration in that regard. When that deadline would be

appropriate, I can't comment on that now.

THE COURT: All right. Does anyone else want to be

heard on that issue, just to express --

Mr. Anderson?

MR. ANDERSEN: I'll just echo what Mr. Kauffman said.

I don't think that we are in the position to make a -- to

continue at this point, but it certainly could be an issue that

we would --

THE COURT: I'm not inviting it.

MR. ANDERSEN: Right.

THE COURT: I'm simply trying to acknowledge that

Mr. Bakker has staked out a position on his client's behalf.

Mr. Warren has, in a different way. Mr. Rainwater is

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 35 of 94
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thinking along those lines. And I'm trying to assess here.

Now, with respect to the defendants who are in

custody, September 7 is the date, and it will continue to be

the date.

We have to move the matter forward because those who

are in custody need an adjudication of the charges that are

brought against them. So to the extent there are staging

priorities that need to be made, they have to be made in favor

of those who are in custody vis-a-vis those who are not. I --

I just think that's a fundamentally fair approach.

All right. So both the 404(b) issue and the

so-called Bruton issue, I'm simply noting, Counsel, that we

will carry those discussions and figure out a place to put them

in the general calendar of things, but they don't -- we're not

going to deal with them on the merits today.

Now we get to the motion for preservation. This is

what was called dispute No. 1 on document 442. It is also a

motion, document No. 456.

Mr. Coan, I think, is standing in for Ms. Wood on the

former. And then with respect to a particular motion, a

version thereof on preservation with respect to Mr. Santilli.

MR. COAN: That's correct, your Honor.

THE COURT: All right. Go ahead.

MR. COAN: Thank you.

First, I'll argue the general motion that Ms. Wood

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 36 of 94
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filed, your Honor.

THE COURT: And then let's let the Government respond

to the general issues, first, before you get particular as to

Mr. Santilli.

MR. COAN: Okay. Thank you.

THE COURT: Hold the microphone a little closer.

MR. COAN: As the Court knows, this is an

unprecedented case, as the Government has characterized it as.

There are terabytes of information here. We're just getting

the information now. We have not been able to go through even

the information that we've received, and there's still more to

come.

We're not in a good position. We, the defendants,

are not in a good position to evaluate what is and isn't going

to be relevant. All's we're asking here, right now, with this

order, is not for discovery or production of the information

but just to hold the status quo so that it's not destroyed.

In fact, the Government, your Honor, has sent out

letters to many of the service providers -- Internet service

providers, social media providers such as Facebook, YouTube,

Twitter, and the like, to all of the defendants' accounts,

asking for the same from them because they think that those

accounts may contain potentially useful information.

And that's the way we're looking at this now, is this

information that the Government agents -- whether they're

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 37 of 94
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state, local, or federal, who are participating in this

investigation -- may have potential useful information in their

e-mail accounts or their text messages, we're primarily

concerned with the loss of electronic information. So the

burden that would be put upon the Government here is not great.

We're not asking them to store boxes and boxes of information.

This is just to keep them from deleting or destroying

information that could be potentially useful to us.

And as Ms. Wood pointed out in her motion, there is

concern about this. The sheriff in Harney County destroyed

information from his Facebook that some of us may have found

potentially useful in this case. So the burden isn't great for

the Government.

Under the due process standard, the Government is

supposed to retain potentially useful information. And the due

process cases, your Honor, are looking at this from after a

conviction in the case, after the cases are all over. And so

we're not looking at any bad faith situation. We're not

claiming any bad faith. We're just wanting to put the agents

on notice that this information is potentially useful to us,

please don't destroy it.

I think also that the Court's standing order here in

this district, standing order 2015-5, is broader than the due

process standard. And Judge Aiken, who was the chief judge at

the time, issued this order. And she said that the Government

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 38 of 94
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is to provide in a criminal case, amongst other information,

any information that casts doubt on the credibility or accuracy

of any evidence or testimony that the Government anticipates

offering in its case-in-chief or which supports an argument for

a lesser punishment at sentencing.

We're looking at information that could be useful to

us in cross-examination; information that may go towards

motive, bias, and interest of these Government agents who may

testify. And that's information that we may be able to find.

At some point we could make a more specific request, once we

know which particular agent or which agency is involved with

our client and how our case unfolds in terms of our defense.

But it's so early on in this case, it's very difficult to tell

you, right now, which agent has relevant information that we

need.

I think also, your Honor, the American Bar

Association model rules, the rules of professional

responsibility, which Oregon has a -- the same rule, 3.8D,

which requires production. And we're not asking production

now. But it does require production from the prosecutors of

all information known to the prosecutor that tends to negate

guilt or mitigate the offense. And, again, this is -- we're

only asking for nondestruction, not production at this point.

As Ms. Wood pointed out, I think the authority that

the Court has in its equitable powers to take control of the

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 39 of 94
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case, the Court could use that authority to issue this order.

Because this is such a -- a large case, with so much

information and it's so early on, the Court could order the

Government to preserve this information for the time being.

We're not saying that this has to last to eternity, but at

least for the time being, until further order of the Court or

until this case is concluded. We're asking that that

information be preserved, so that we have the opportunity to --

to access it, if necessary.

Again, the burden here is not great. It's very

similar to what the Government is asking many Internet service

providers and social media accounts to preserve their

information that they might -- may find potentially useful.

We're just asking for the same thing from the Government agents

and agencies who were involved in the investigation of this

case so that we have a fair opportunity to -- to try our case

with the information that we may need to cross-examine those

witnesses.

THE COURT: Are you aware, Mr. Coan, of any case in

which such an order was required or evaluated as something a

defendant is entitled to under the due process clause? Are you

aware of any precedent compelling such an order?

MR. COAN: Ms. Wood cited a civil case, your Honor --

THE COURT: I mean, in the criminal context.

Of course, the civil settings are what they are. One

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 40 of 94
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might wonder why a person would be exposed to a criminal

process and never be able to take a deposition. But in a civil

setting, they're routine. But the rules are quite different.

MR. COAN: Um-hmm.

(Defendant Blaine Cooper exits courtroom.)

THE COURT: Under Jencks and Brady and Giglio and

professional standards, the prosecutors have numerous

affirmative obligations. I'm simply asking if there's any

criminal case you know of where a court also ordered

preservation, which is, I think, implicitly subsumed in the

duty that the prosecutor has to provide the kinds of

information you're citing within those standards.

I don't know of any case, and that's why I'm asking.

MR. COAN: I don't know of any case either, your

Honor. Because most of them look at it after there's been a

conviction and then there's been a complaint that information

wasn't preserved. And the Court has found due process

violations in some circumstances.

The case that Ms. Wood cites that indicates that the

fact -- if there is an order issued, it does put the agents on

a higher standard of alertness for this information, so that

they will not destroy it. Because even though they may be

aware of their duties not to destroy, if they know that there's

a court order not to do so, they will perform at a higher level

in terms of complying with that order.

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 41 of 94
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THE COURT: Thank you, Mr. Coan.

MR. COAN: Thank you.

THE COURT: Mr. Barrow.

MR. BARROW: Your Honor, we will primarily rely on

our response to the general motion for -- we believe it

outlines the Government's position fully.

Just in brief, the Government's view is that the

rules of discovery are meant to deal with this very situation.

The case is unusual in our district for the number of

defendants. There certainly is a lot of data in the case. But

that doesn't mean that we can't rely on the rules of discovery

to deal with these issues.

We understand our obligation both to seek out

materials and produce them. And if we fail to produce

something that is discoverable, there are consequences that the

Court and the defense attorneys in this case are very familiar

with.

There really is no precedent for the order that's

been requested. I had a very frank conversation with Ms. Wood

because I had never heard of anything like this and I asked her

if she had, and she candidly admitted that the answer is no.

The case that -- the civil case that's cited, I

believe even the preservation order in that civil case was not

issued. But the civil context really isn't appropriate here

in -- in a criminal case.

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 42 of 94
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The nature of the materials that the defendant is

asking for -- the defense are asking for are virtually

unlimited and they're highly speculative.

To be frank, I don't know that the Government could

comply with the order as proposed because I don't think it has

any reasonable limits. I used the example of employees of

federal agencies or state agencies, that their agency

participated in the investigation and they may have commented

on something that they saw in the media. That would be covered

by the proposed order, and I don't know that we would have the

capability to identify everyone -- every employee who

communicated about this case on either Government systems or

personal systems.

And so, therefore, we think the order would be

extraordinarily burdensome. And, frankly, would set the

Government up for failure at some point because we couldn't

guarantee compliance with the breadth of that order.

THE COURT: All right. Thank you.

Mr. Coan, anything else on the general motion before

you address Mr. Santilli's particular motion?

MR. COAN: Just a couple of things, your Honor.

The rules of discovery are all geared towards

production of discovery. There is no specific rule that --

about preservation of information.

So, therefore, when there isn't a rule in the rules

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 43 of 94
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of discovery or the criminal rules of procedure, the Court has

its equitable powers to fill in the gaps, and that's what we're

asking the Court to do here.

If the Court needs to be -- if the order needs to be

limited in some way -- and Ms. Wood did try to negotiate with

the Government on a more limited order, if you're going to do

that. If -- we talked with the Government about where they

think it may be impossible for them to comply with it. We're

willing to negotiate that. But we're particularly interested

in texts and e-mails that may name any one of these defendants

in particular; that information. And if any agent who was

participating in the investigation of this case has a text or

an e-mail that named one of these defendants, it would

obviously be important to that defendant or the attorney for

that defendant to review that, to see if this agent has a

motive, bias, or interest in the case that may have skewed the

investigation at all.

THE COURT: All right. Thank you.

With respect to Mr. Santilli's motion?

MR. COAN: Yes, your Honor. That's more specifically

directed.

Mr. Santilli has a -- quite a long history of being

highly critical of government, government agencies; in

particular, the BLM and the FBI.

He's had on his show, several times, shows directed

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 44 of 94
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at Agent Daniel P. Love from the Bureau of Land Management.

Agent Love was highly involved in the Bundy Ranch standoff down

in Nevada a couple of years ago. And we think, based upon the

interactions that Mr. Santilli has had with the BLM, with

Daniel P. Love, that there's reason to believe that there's

animosity that Mr. Love may have for Mr. Santilli.

We are investigating a selective prosecution or

vindictive prosecution claim, and so the information that we

have asked for -- the texts and e-mails of those individuals,

of Daniel P. Love or Agent Bretsing (phonetic), who is the FBI

lead agent in Oregon at this time, we want to know if there are

any e-mails from or text messages from Daniel P. Love, or

others -- may have been intermediary -- from Daniel P. Love to

Agent Bretsing that name Mr. Santilli because that would be

directly relevant to our -- our -- our investigation in a

selective prosecution or vindictive prosecution claim.

THE COURT: So it's not a preservation issue as much

as it's a discovery issue?

MR. COAN: Well, we're asking to preserve at this

point.

At some point, shortly, we will be asking for

production, but we just don't want it to be destroyed at this

point.

THE COURT: All right. So, we're dealing only with

the preservation issue as to evidence that might yield

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 45 of 94
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something that would otherwise be producible in any event under

Brady, Giglio, and --

MR. COAN: Yes.

THE COURT: -- the like.

All right. Mr. Barrow, on that specific subject.

MR. BARROW: Your Honor, first of all, having --

after the -- Mr. -- Mr. --

THE COURT: Excuse me. Just a minute. I'm -- I

can't hear.

Start over, please.

MR. BARROW: Your Honor, we have not filed a formal

response to Mr. Santilli's motion because it came in a little

bit later. I'm comfortable dealing with it today. I think the

general principles outlined in the Government's response apply.

I did -- because of the more specific nature of

Mr. Santilli's request, I did alert both BLM and the FBI to

this motion.

My understanding -- although we're still looking into

it -- is that these types of records are held, you know, on

central servers, in -- at the headquarters location. That

being said, you know, I think that the request illustrates the

very speculative nature of what Mr. Santilli is seeking.

If this were framed as a discovery request, the

materials -- the -- the request, as framed, wouldn't be

discoverable because it's based on pure speculation.

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 46 of 94
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As it relates to Mr. Love -- or SAC Love, that would

appear to be something related to the Nevada prosecution. Both

the date range that Mr. Coan has outlined and the involvement

of Mr. Love relates to the Nevada prosecution.

As to the request as it relates to SEC Bretsing,

again, this is a classic sort of fishing expedition for things

that Mr. Santilli believes must exist because he was critical

of -- of Mr. Love and Mr. Bretsing.

As we well know from prior detention hearings

involving -- involving Mr. Santilli, he was highly critical of

a great deal of people -- a great number of people. And if

criticizing someone -- a government official on his show

created a legitimate request for discovery, we would be

searching through the President's communications, the Secretary

of State's communications, the former Secretary of State.

There really would be unlimited number of people to look for,

if that was the basis for producing something.

So when a more specific request for discovery is

provided by Mr. Coan on behalf of Mr. Santilli, we will

certainly look into it. We have a duty to investigate, a duty

to find things that are Brady, and we fully intend to comply

with that duty. But based on the speculation in Mr. Santilli's

current motion, that -- that these materials may exist and

may -- may help his -- his defense, we don't believe that at

least preservation should be ordered.

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 47 of 94
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If -- if there were a rule for preservation of

materials, I think it would hinge, as it does in the civil

context, on some evidence that these things are being

destroyed.

THE COURT: Well, that's actually not the case

anymore. Under the evidence -- under the new rules of civil

procedure, there are preservation burdens that start at the

beginning of a case. ESI, in the civil context, is very much

the subject of this kind of action.

But, as was noted, civil procedure and civil

production rules are not and do not track the criminal ones.

And that's not something I have the authority to change.

MR. BARROW: I agree, your Honor. And, obviously,

I'm not an expert in civil discovery.

Ms. Wood was kind of applying that sort of analogy in

talking about Sheriff Ward's potential destruction of personal

Facebook postings. My only point is that the defense in the

Santilli request has not made any argument that there's a

danger that the stuff will disappear. And we just think that

the -- based on the request for this nature -- or the

preservation of this material, we would ask that the Court not

impose a duty to preserve.

Obviously, we'll deal with the discoverability of

those issues later. And if the Government has failed to

preserve something that is discoverable, again, there are

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 48 of 94
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consequences. The rules of discovery are fully capable of

dealing with those issues.

THE COURT: I'm taking both general preservation

motion and Mr. Santilli's specific motion under advisement on

the papers and the argument just made, and I'll issue a ruling

in due course.

Ms. Shipsey.

MS. SHIPSEY: Yes, your Honor.

At the outset --

THE COURT: Would you turn on the microphone, please.

MS. SHIPSEY: Oh, I'm sorry.

At the outset of Mr. Coan's arguments, Mr. Cooper

began to have chest pains. He was taken out by the marshals,

and is being seen by a medic right now. So he has not been in

here for the last 15 minutes, or so. I wanted the Court to

know that.

THE COURT: All right. Well, we trust he will be all

right and that you will keep him informed of what's happened.

And if there's an issue because of his absence, you'll let me

know.

MS. SHIPSEY: Absolutely, your Honor.

THE COURT: Thank you.

All right. The next item on the agenda was described

as overall compliance with our district's standing order

2015-5, which is the very order Mr. Coan was just referencing,

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 49 of 94
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including a deadline for production of Brady materials and

other matters.

Mr. Kohlmetz is identified here as the person to

address it.

Good morning.

MR. KOHLMETZ: Yes, good morning. Good morning --

THE COURT: Is your microphone on?

MR. KOHLMETZ: I'm sorry. I -- I don't have a

microphone. I will borrow this one.

THE COURT: We need to be sure those who are

listening elsewhere can here you too, even if we can.

MR. KOHLMETZ: Sure.

THE COURT: Go ahead. 

MR. KOHLMETZ: Okay. Your Honor, I have conferred

with Mr. Barrow and the co-defendant lawyers for some of the

co-defendants. I think at this juncture, if we could just push

this conversation back to the next status conference, we'll

have some more -- potentially more specific information.

I don't think the Court's assistance is required as

of yet.

THE COURT: Very well.

I'm simply going to observe that I know there was a

delay in securing the services of a third-party vendor to

process the discovery being provided by the Government through

the CJA office. And despite my best efforts, those approvals

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 50 of 94
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took much longer than I expected. But I understand the final

approval occurred late last week. That the vendor is in place,

is working.

And so hopefully very soon all of the defense counsel

who are waiting on access in that way will have -- have a much

better situation. So I'm guessing this might relate to that,

too, just the timing there. 

The next item is assigned to Mr. Coan, with respect

to transcripts of video recordings to be used as evidence --

again, this anticipates to be used at trial, potentially.

There was a -- a matter submitted to me first

requesting -- and it looked like there was a semantic dispute,

at first, about whether the request was for the Court to order

the Government to provide lists.

I don't think that's really the dispute. The dispute

is to ensure that transcripts of video recordings that are

going to be used get produced.

But is there an issue right now I need to address?

Or is it developing still?

MR. COAN: I'll still developing, your Honor. I've

been in communication with Mr. Barrow. And he expressed to me

that they're making a good faith effort to get to us what we're

calling transcripts. And what we call transcripts and what the

Government calls transcripts may be two different things.

Their 302 reports have quotes from certain videos

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 51 of 94
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that -- in a broad sense, the term "transcript," that would be

considered a transcript. Where -- whereas with the defense,

your Honor, we're in the process of looking at getting

transcripts for a lot of these videos. So we don't want to

duplicate efforts if we're just going to get the same product a

month down the road. That's why I had asked for a list of the

transcripts, so we're not duplicating efforts and adding to

costs in the case. So at this point in time we are taking the

Government at their word that they're producing the transcripts

just as quickly as they can, or the 302 reports with quotes

from videos and audio recordings. And I appreciate the Court's

expression back to the Government to put a priority on those

302 reports that do contain quotes from audio or video

recordings.

THE COURT: All right. Ms. Baggio, you're assigned

to what's -- what are described as items 5 and 6. Are those

issues we need to discuss, or not?

MS. BAGGIO: Your Honor, as to item No. 5, I have

been conferring with the Government. And when we have these

reports due on Thursday, a lot of times a lot can happen.

THE COURT: Well, at -- resolving is a good report.

But I'm just trying to ensure that if there is an issue to

raise now, we do it now.

MS. BAGGIO: I believe the only issue left to resolve

on this item, your Honor, is the question of when the Court

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 52 of 94
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would like any motion filed with regard to notice and discovery

of national security investigative techniques on these

defendants.

And my understanding, in speaking with the

Government, is that I -- after I provided them with a draft of

my motion for notice, the Government is conferring with the

relevant authorities. And the plan is to report back to me the

Government's position on Monday. And -- so I think, your

Honor, that we would request, if a motion is necessary, that

the Court would allow me to file that before round 2 because

the fruits would be so relevant to round 2.

THE COURT: Actually, it would be good to be able to

argue this motion in the time we have set aside on May 23.

MS. BAGGIO: Yes, your Honor.

THE COURT: So if the question is do you have leave

to file it after April 27, the answer is yes.

If the question is when, the answer is as soon as

possible, so that the motion and an opposition can be in my

hands ahead of May 23 so that I have an opportunity to study

the -- the issues and not come into court where it's being

argued, just reading the Government's response then.

So what I'll ask is -- and I'll put this in the order

from today, is that I get a status report back from you. I'll

wait for the order. But we'll figure out a mechanism where you

can let me know the timing, and -- and we'll get it done then.

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 53 of 94
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MS. BAGGIO: Thank you, your Honor.

THE COURT: All right.

MS. BAGGIO: And I believe with regard to No. 6,

again, lots of conferrals are happening, your Honor. At this

point in time I don't believe that we need the Court's

intervention on that item.

THE COURT: Thank you.

Mr. Kohlmetz was assigned item 7, discussion

regarding a change-of-venue motion.

And let me just note for the record that recently I

e-mailed to counsel a draft of a plan regarding jury management

for selection of a jury.

I explained in that draft the very many steps that

need to be taken in order, ultimately, on September 7, to have

jurors reporting who have a decent chance of being qualified

and can participate in voir dire.

In order to have jurors reporting on September 7, we

need to begin very soon. I had indicated in the e-mail, in

May, we could maybe stretch that to June. But the -- the issue

regarding a change-of-venue motion, its timing, the work it

would take to permit the defendants to have expert witness

opinion evidence about the likelihood of seating a fair and

impartial jury here is time that would otherwise preclude us

going to trial on September 7. So I've expressed, already, a

perspective that I think the timing of the change-of-venue

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 54 of 94
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motion ought to await the actual voir dire.

I do -- and I'm simply reciting this now for the

record because, as I say, the communication was only to counsel

by e-mail and not in the public record.

I do acknowledge there are many issues both sides --

the Government and the defendants -- will want a chance to

review with prospective jurors.

And, fundamentally, a robust voir dire process would

be, in my judgment, the best way to determine if we are able to

sit a fair and impartial jury.

And in that process, it seems to me, if it -- if that

voir dire process undermines the right of the defendants to

have a fair and impartial jury, that -- if it could be

established that way, then that would be the time to address a

change of venue and the consequences of having to change venue

as of September 7th. Because if we had to change venue as of

September 7th, we would have to find a venue and figure out

what to do with it, and then more time passes and there are

more consequences.

On the other hand, if we are able, with everyone's

cooperation with the questionnaire formatting and all of that,

to ultimately get to a place where the parties have had

adequate access in what I have described as a robust voir dire

process, to evaluate each and every juror presented, to

exercise challenges for cause, to exercise peremptory

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 55 of 94
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challenges in a number yet to be determined, we may be able to

avoid the cost and delay and the expense of a venue motion.

So that's my setting the stage.

(Defendant Blaine Cooper enters courtroom.)

THE COURT: Mr. Kohlmetz.

MR. KOHLMETZ: Well, your Honor, perhaps I'll just

start with a brief history of my funding frustration.

I was appointed Mr. Patrick's case February 18th, if

my recollection serves. Very shortly thereafter, after

conferring with Mr. Patrick, I was directed to explore a

change-of-venue motion. I began contacting providers. Very

soon came to the conclusion that the expenses would be very

great in developing the data necessary, by my reading of the

case law, to support such a motion.

In March, I approached the panel office and was

informed that given the expense -- given the amount of expense

involved, it would need to be -- it would need to go through, I

think, what was referred to as a national litigation support

office, a request-for-a-proposal procedure, and so we held off.

Some weeks later, mid-March, I was then told this was not a

litigation support project. That it was not subject to the RFP

rules. And that we could then submit a regular request through

the CJA panel office but that we should confer with the panel

office before doing so.

I was not able to confer in the next week. Some

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 56 of 94
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desperation on my part, in an effort to comply with the

timelines in the case, I went ahead and filed, on March 29th, a

request for funding in the amount of 129,300 dollars. That

funding would accomplish two -- both components of the

change-of-venue analysis; a media analysis, qualitative and

quantitative of all of the media coverage, particularly

surrounding the time of this event. The 41 days of almost

constant media coverage. And -- and after the media

analysis -- and in my original proposal, concurrent with it, a

community survey attitude in this district and two others to

determine the extent of exposure and subsequent attitudes

within the prospective venire.

At some point in March -- at some point in April,

while I was on vacation, I was then informed that in an effort

to get the funding passed, I should bifurcate the request.

Request funding for the media analysis. And if the results of

the media analysis then supported further -- supported the

second component, the community attitude service, proceed with

that.

I expressed an absolute willingness to do that, and I

have done that. But I did, at that time, express my concern

that bifurcating the funding and bifurcating the work would

cause additional delay because there would be no concurrence in

the work.

I spoke with my proposed expert earlier this week.

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 57 of 94
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The funding request has been bifurcated. It is still pending,

as of today.

From the moment that they receive funding, the media

analysis will take 60 to 90 days for full work product to be

produced and divulged to all counsel.

If at that point, after review by counsel, a decision

is then made to proceed with the community attitude survey,

then I will be required to seek funding for that. Assuming

that happened on that very day, the community attitude survey

and its resulting data is an additional 60 to 90 days.

Best-case scenario, if funding were approved today, according

it my expert, we're looking at approximately 150 days; which

puts us right up to September.

THE COURT: Right. Mr. Kohlmetz, I'm aware of your

funding request. It is, at the moment, an ex parte submission

in the CJA e-Voucher system.

Since you've made this full disclosure today, I would

like leave to file it in the docket.

MR. KOHLMETZ: Absolutely.

THE COURT: I will consider it a motion that is

substantive, as well. And I still think, consistent with the

order I entered, which is 389, this is not the case where

prejudice can be presumed. I do believe this is a case where

there is strong opinion on many opposing issues. That

prejudice, depending on one's perspective, could be against the

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Government vis-a-vis prejudice against the defendants'

positions. And I think you should expect -- but I will review

it all one more time -- that I'm going to deny the funding

request with leave to renew it upon a showing of prejudice that

is developed in the context of an actual voir dire. Primarily

because I think the best mechanism for everyone accused -- and

for the Government -- is to confront face-to-face the jurors

who will decide the case and to determine whether they are

able, despite what is prevalent knowledge of an event, to be

neutral in evaluating the credibility of each witness

testifying against him or her, the substance of the evidence

presented by the Government, the evidence defendants choose

voluntarily to present, and this question of privilege with

respect to First Amendment expression and the issues around the

firearm possessions, and the like.

So I'm just -- I'm just being realistic about what I

have in front of me, and I appreciate -- I do want your

permission to be able to file those ex parte submissions in the

public record.

MR. KOHLMETZ: Absolutely, your Honor. And --

because if the motion for funding is denied, I -- I would

obviously like an opportunity to respond and then perhaps to

appeal that decision. Having those records -- I've disclosed a

potential provider, already, to the Government.

THE COURT: Absolutely. Absolutely.

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MR. KOHLMETZ: So I would simply point out, your

Honor, that as I understand the law, the question of actual or

presumed prejudice will be remote, and I will not be able to

properly evaluate it without both the media analysis. Because

the first step in the analysis, as I understand it primarily

from the Skilling case, is that I need to demonstrate that

there is media saturation.

One of the things about the media saturation in this

case that I suspect is far different than most criminal cases,

is that the media saturation did not begin after the crime or

the alleged crimes were committed.

For 41 days, and even before, during this protest,

there was live-streaming media coverage that amounts to -- and

I would have guessed in the prosecution's eyes -- a continuous

and ongoing confession. This is, I think, a very unique

circumstance, in comparison to many other cases, including the

Boston bombing case, where the nature of the media coverage and

the nature of the information in that saturation is so

fundamentally different than what we normally see. That

without the subsequent -- assuming the media analysis bears out

what I believe I have just argued, that without the subsequent

community attitude survey to gauge the -- the nature of those

opinions and what the effect of that extreme amount and the

topical nature of that coverage did, I don't think I would be

in a position --

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THE COURT: Let me ask this, then, Mr. Kohlmetz.

You go ahead and file those motions in the record,

the ones you've already filed as part of the CJA matter. All

right?

MR. KOHLMETZ: Oh, do you want me to refile them?

THE COURT: Well, they're not in the CM/ECF record.

They're in the e-Voucher record. So they're not a part of the

record of the case at this point.

MR. KOHLMETZ: Gotcha.

THE COURT: And if you want leave to add a memorandum

with those motions about the necessity, in light of this

colloquy, you can do that.

MR. KOHLMETZ: Sure.

THE COURT: And then I won't decide the funding or

the general proposition of whether the motion should be

considered now until I get that.

MR. KOHLMETZ: Okay.

THE COURT: All right?

MR. KOHLMETZ: (Nods head.)

THE COURT: Very good. That's how we'll deal with

it. Thank you.

All right. Item 8 is timing of the round 2 motions.

Before we get there, I do need, Counsel, your input

on the timing of argument on the round 1 motions.

We have many that were filed. A couple that were

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 61 of 94
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filed late.

Mr. Medenbach filed a motion yesterday, and the

Government's been directed to brief that.

Mr. Bundy's motion is still to be filed. Mr. Ammon

Bundy's.

Ms. Baggio reserved the potential for a motion.

I want to be sure that when we convene on May 23, for

argument, we have a reasonable calendar to accomplish all of

the work.

And so I think the thing to do is for me to designate

representatives on both sides to work out a proposed argument

schedule for all of those currently filed and anticipated

motions. And then I'll review them, and I'll issue an order

about how we're going to use the time so that we get the work

done.

Who wants to be the Government representative there?

MR. KNIGHT: I can do that, your Honor.

THE COURT: Okay. Do we need more than --

Mr. Federico, you look like you're ready to volunteer.

MR. FEDERICO: Yes, your Honor, I'm happy to

volunteer.

THE COURT: You're it.

Okay. So today's Wednesday. Could you give me that

by next Wednesday? That's also the day you give me updates on

discovery.

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 62 of 94
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Is that enough time?

MR. FEDERICO: Yes, your Honor. I believe it would

be.

THE COURT: Very good. Let's do that.

Now, item 9 is this -- this proposal and plan for a

jury -- how to deal with a jury. It also relates, in general,

to a motion -- I need to find the reference.

I think it was your motion, Mr. Bundy. Mr. Ryan

Bundy's motion regarding grand jury discovery. Because both of

them, in part, involve this question of the pool from whence

jurors are called for grand jury relative to Mr. Bundy's motion

and for trial.

I wanted to advance the inquiry just to give you all

some information that I secured via Ms. Glover's -- Teresa

Glover, the jury supervisor. And I think what I can do is

through our processes here at the court, I can get a

declaration prepared, so that you have a reliable basis to know

some of the information that this motion addresses. And I can

just give it to you now, so that you know what to expect. And

that way we'll get -- we'll get this issue moving, and we don't

have to wait for a lot of other inquiry.

So here's what I understand. And this is subject to

Ms. Glover verifying it by way of a declaration in due course.

The original case under which everyone is appearing

now, 16-51, was considered -- the original Indictment was

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 63 of 94
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considered by the grand jury No. 1501.

The case originally indicted, the Cooper case, was

considered by grand jury No. 1502.

And the Superseding Indictment, by which everybody

was joined in this case, was considered by that original panel,

No. 1501.

Just for general information, these panels are formed

under the jury plan in the manner in which they're drawn. They

serve for 18 months, and then they serve in alternate weeks.

Each panel has -- if I'm remembering correctly -- 16

jurors, and a minimum of 12 are needed for a quorum in any

grand jury setting.

That 1501 grand jury that returned the original

Indictment in Case 16-51 was drawn in a way that included one

juror from the Pendleton division, someone who was from

Hermiston. And I don't have all of the breakdown yet, but I'm

trying to see if that can be accomplished. But my own

understanding is corrected. I thought the grand jury

Indictment was from the Portland division only, and that's not

true.

The grand jury panel did draw proportionately from

the District of Oregon. So it isn't just a Portland division

panel from which the grand jurors were pulled.

And let me just be sure everybody understands. The

Portland division is not Multnomah County. It extends down to

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 64 of 94
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the central Oregon Coast, all the way to the Pacific ocean,

down to the Oregon Coast, across to the Cascades, and up to

Hood River, or around there. So it's the upper quadrant of the

state of Oregon.

The panel 1502, that originally indicted the Cooper

case, had at least two grand jurors from the Pendleton division

and one from Central Oregon. And I don't know if that

qualified as Eugene, or what. But they're -- so my point is,

there were jurors from outside of the Portland division that

returned those Indictments.

I am going to work with Ms. Glover to collect the

data that I think will help frame this issue, to the extent it

needs to be framed, so that you don't need to go through a --

any more discovery process, and I'll just get it done.

I'll get information collected. We'll get a

declaration prepared on terms that I think are reasonable, and

filed. And then if, Mr. Bundy, you believe a motion is

warranted, you're free to file it.

Does that work?

DEFENDANT RYAN BUNDY: Yes.

THE COURT: Okay.

DEFENDANT RYAN BUNDY: Uh --

THE COURT: Yes, sir.

DEFENDANT RYAN BUNDY: When will that be?

THE COURT: As soon as we can.

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 65 of 94
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DEFENDANT RYAN BUNDY: Okay.

THE COURT: All right? 

There are a lot of moving parts that all of you are

dealing with and there are 26 of you with lawyers and there's

one of me, with a good team of court supporters. But I'm going

to do the best I can do. We'll get it out reasonably soon.

All right?

DEFENDANT RYAN BUNDY: Okay. Thank you.

THE COURT: All right.

MS. SHERTZ: Your Honor?

THE COURT: Yes, Ms. Shertz.

MS. SHERTZ: Forgive me. If you're done with that

piece, I'm not sure whether we actually ended up dealing with

No. 8, then, which was the timing of round 2 motions, which is

something I actually --

THE COURT: We didn't. I want to actually deal with

the calender, that whole list at the end.

MS. SHERTZ: Okay. I misunderstood when you called

No. 8 --

THE COURT: No, no. I may not be clear, but

there's -- there are a lot of things.

MS. SHERTZ: Thank you.

THE COURT: We'll catch it. Thank you.

We've already addressed the pretrial detention

issues.

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 66 of 94
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So now we want to get to this big calendar concern

and a list of what's being considered as -- as round 2 motions.

So on page 6 of the joint status report, there are

identified five different subjects. The last three are really

defendant-specific subjects. And it seems to me, maybe -- it

may be necessary for those to be addressed differently than a

group kind of motion. Am I -- am I misreading that?

Who -- who is the organizer on behalf of counsel

around these motions? Ms. Baggio?

MS. BAGGIO: I am, your Honor.

THE COURT: Thank you.

With respect, then, to these various motions to

suppress, those are defendant-specific, yes?

MS. BAGGIO: That is generally true.

THE COURT: All right. Are you thinking there's any

global issue that would apply to every defendant?

I'm having a hard time conceiving what that would be.

Because if there's a suppression concern -- like Mr. Olson has

an issue specific to his client about an invocation, or another

lawyer thinks there wasn't a voluntary waiver of the right to

remain silent, those are all fact-specific to an individual.

MS. BAGGIO: Your Honor, I would say that there are

some issues that we've identified that may be applicable to

more than one defendant, and we are working among ourselves --

THE COURT: Okay.

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 67 of 94
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MS. BAGGIO: -- to find an individual to address

them. For example, a Government use of a geolocation device.

It wasn't used on just one defendant.

THE COURT: I see.

MS. BAGGIO: But the same type of application might

be used on 17.

THE COURT: I see.

MS. BAGGIO: So we're working together to try to

efficiently address that.

And I think similarly, if we look at the types of

investigative techniques that the Government used, there were

clumps. And the same means or methods were used against

multiple defendants. And so that's kind of our approach. So

that certainly while a Miranda issue would be a

defendant-specific, some of the Fourth Amendment items would be

applicable then to more than one person.

I think that the other type that comes to mind is

with the pole cameras and the All Writs Act, we're trying to

figure out, okay, well, where were the cameras? Who might have

standing to challenge the captures that were made under those

cameras?

And so that's part of what our evolving understanding

of the discovery requires me to request of the Court, to say

I'm not really sure who might all be on some of those issues.

THE COURT: So as the status report is printed out,

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 68 of 94
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for me it all came out in black-and-white. And I'm told, in

the text, that some things are highlighted in red. So I can't

really tell what's agreed to and what isn't.

Maybe you, Ms. Baggio, could point up the issues that

you believe, on behalf of defendants, need to be concerned.

And then I'll hear from the Government. And then we'll go

forward.

I can address the proposal about days to set aside

for round 2 arguments. But I think we probably need to get set

when the round 2 motions will be filed.

MS. BAGGIO: Your Honor, I don't believe there was

any dispute between the defendants and the Government as to the

proposed schedule.

THE COURT: Okay.

MS. BAGGIO: The word "proposed" appears wherever

that isn't a deadline already imposed by the Court.

THE COURT: Okay.

MS. BAGGIO: And so I believe -- and the Government

can correct me -- but this is the joint proposal as to round 2

on behalf of all of the parties.

THE COURT: Is that right?

MR. KNIGHT: That's right, your Honor.

THE COURT: All right. Well, I have to negotiate

with my team, too, in terms of being able to process all you're

giving me. But I do want to address days to set aside for

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 69 of 94
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hearing on round 2, and I need to get a calendar.

Do we have the hard calendar here, Ms. Boyer?

THE CLERK: Yes, your Honor.

THE COURT: May I see it, please.

I am out of the district the week of July 11. The

options there are Judge Jones continues to volunteer to be of

assistance. To the extent we needed to use July 11th, we could

enlist his help. Otherwise, I'm available -- I have other

matters already scheduled but, of course, this takes priority.

I'm not out of the district, in other words, July 18

week or the week of July 26, or ahead of the week of July 11.

We have a status conference on July 6th, and it

occurred to me that perhaps it might be possible if we severed

one or more of these motions. The more general ones, we could

potentially hear them on July 6th; that is, if they're fully

briefed, since we're already going to have a status conference

that day.

So I need to tell you the proposal for July 11 week

can't work. And let me -- let me just give it back to you, now

that you know what -- where I am available. And, Ms. Baggio,

you and Mr. Knight can do some more scheduling. And include

Mr. Federico, too, since he's working on the allocation of

hearing time for May 23. I'll just make him the hearing time

designator for this other one, too.

And then by Wednesday, maybe you can give me a

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 70 of 94
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specific joint proposal on how to -- how to schedule out these

round 2 motions.

Would that work?

MS. BAGGIO: Yes, your Honor.

MR. KNIGHT: Yes, your Honor.

THE COURT: And Mr. Federico?

MR. FEDERICO: Yes, your Honor.

THE COURT: Okay. Now, I need to ask whether -- oh.

(Pause, referring.)

THE COURT: Right now our next status hearing is June

15. In anticipation of that, the waivers of appearance should

be June 1. The joint status report should be June 8. I'll

issue an order from today, reciting the additional reports I've

requested from all of you.

The two defendants who wish Faretta hearings will

file motions, and we'll get those docketed.

The issues around Multnomah County detention matters

will be developed and then reported back to me one way or the

other.

Does the Government have other matters I need to

address today?

MR. KNIGHT: No, your Honor. Thank you.

THE COURT: Does any other defendant have a matter

that needs to be addressed in the public session before we

adjourn? 

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 71 of 94
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How about if you have a motion -- a matter, stand up.

Mr. Kohlmetz.

MR. KOHLMETZ: Just a quick one, your Honor. May I

have leave just to file Mr. Patrick's self-representation

request pending receipt of the form from the panel --

THE COURT: Yes.

MR. KOHLMETZ: -- just to get it?

THE COURT: Yes, absolutely. You can do that.

MR. KOHLMETZ: Okay.

THE COURT: And we'll get it docketed as soon as we

can fit you in.

MR. KOHLMETZ: Terrific. Thank you.

THE COURT: As I understand it, Mr. Kohlmetz, this is

Mr. Patrick's desire? You personally don't see there's a

conflict of any kind?

MR. KOHLMETZ: I do not have a conflict with

Mr. Patrick. I --

THE COURT: He wishes to represent himself?

MR. KOHLMETZ: Yes. And he objects, as you heard, to

standby counsel. I've told him, and you've told him that you

will be appointing standby counsel. We can address that at the

hearing.

THE COURT: Indeed. I -- I respect your points, sir.

I just want -- wanted to figure out if Mr. Kohlmetz thought he

had a reason to withdraw, and he's telling me no. So this is

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 72 of 94
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driven by you, and we'll address it at your hearing. Okay?

All right. Yes, Mr. Arnold.

MR. ARNOLD: Your Honor, your e-mail mentioned

bringing to your attention any concern we had regarding the

spacing for trial.

THE COURT: Yes. Let me just state that issue.

We're very crowded here, and there are many parties

who are not in attendance.

To the extent all 26 defendants go to trial at one

time, this -- this could not work (indicating). And what I am

working on right now is -- working with GSA, who owns the

building, to see about a way to modify the courtroom to have a

meaningful space for trial.

For example, the way we're set out now, there's not

even room for a witness to approach the witness stand. There

isn't a way for us to conduct a meaningful process. So I'm

looking into the idea of removing the bar in this room,

removing the public spectator section, and having an entirely

separate dedicated room for observers. So that where all of

the folks are sitting now and observing, there could be counsel

table, microphones, and more space for all of those who do go

to trial on September 7th, including jurors and probably a

larger jury box.

So that was the subject I wanted you to be aware I'm

looking into.

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 73 of 94
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Mr. Arnold.

MR. ARNOLD: Thank you, your Honor. We have

objections to several of those items. In general, we object to

removing live spectators from the courtroom, under the Sixth

Amendment. We believe that there's a right to a public trial,

and we believe the term "public" is defined as having an open

view.

And I would just use by analogy that if I were to

book a room at the coast, and I was told that I had an open

view of the beach and there was a video monitor, I would ask

for a refund. And I think the founders would do the same, if

that was the sort of setup we had in this courtroom.

And the due process reasons behind it are beyond just

the mere public observation. There is a right to a defendant

to have someone who swears under oath, to have to look into a

courtroom of spectators, and know that there is some

accountability not only to their oath but to their community;

even though this is a very large community in the District of

Oregon.

The concerns I have about witnesses approaching, I

would recommend they exit the courtroom, go through the hallway

adjacent, and come into the side door. 

Regarding cross-examination of witnesses, I object to

using a podium. I need to be seated next to my client.

THE COURT: I didn't say you couldn't have your

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 74 of 94
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client next to you, next to a podium, did I?

MR. ARNOLD: No, you did not, your Honor. So that

would alleviate my concern of the podium, if I had my client

there. So I appreciate that option.

THE COURT: So, Mr. Arnold, those concerns are driven

in part just by the realities of space. And, indeed, they may

be mooted, depending upon where we go and how many people we

have on September 7th.

MR. ARNOLD: And I have suggestion regarding space as

well.

THE COURT: I'm happy to hear it.

MR. ARNOLD: I note that there is a secure Donald

Trump meeting on Friday in Eugene at the Lane Event Center.

There will be Secret Service there. There will be other

security. And I think it would probably be as great or

greater -- or similar to what we have in this courthouse.

I think that one option is to have the Government

rent out a conference center and have security set up there. I

don't think this particular courtroom or this courthouse should

restrain the rights to due process and a public hearing. I

think we could come up with a good plan. And if fundings are a

concern, you know, we could address that as well.

But what I envision is if the Court thinks we can't

fit here comfortably, you know, a convention hall would work.

I believe security could be set up. And I would be willing to

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work with whomever to -- to assist in that.

THE COURT: I understand what you're saying.

We have several issues. Again, it's driven by the

number of people. And as we've heard this morning, there are

some who want not to be part of the group going to trial on

September 7. And that in fact may resolve some of these

concerns. But there are issues of degree.

To -- Mr. Medenbach? Yes, sir. I'm sorry. I didn't

see you.

DEFENDANT MEDENBACH: Since we had our last status

meeting, I came across with -- with the Freedom of Information

Act, your oath of office that you took in 1999.

THE COURT: Yes, sir.

DEFENDANT MEDENBACH: And I can see how the confusion

could be that it's a single oath because it's a combination

oath; the two oaths in it. Title 28 Section 453 and Title V

Section 331 of the United States Code.

So there's two oaths of office being taken here, and

I just want to put on the record that the Constitution doesn't

say a federal judge can take a second oath of office. And if

the Constitution says that, then -- then a federal judge can't

take a second oath of office.

So I was just going to make that statement. And if

anybody else on the co-defendant -- it's on my Facebook page,

if anybody wants to see it.

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Thank you.

THE COURT: Thank you, sir. It's noted for the

record.

I think with respect to this question of the concept

I outlined here on the record and that I shared with counsel by

e-mail about possibly having a courtroom where only the

parties, the jurors, the witnesses, counsel were present and

all spectators were in another place is something on which

there will need to be briefing, if we get to that place.

Again, we're -- we have to get to the day by which I can

reasonably determine how many people will go to trial. And I

appreciate your suggestion about witnesses coming in down a

hallway.

But, in the end, we've got to provide room for the

jurors and everyone else. And the security issues for a

presidential candidate are just not the same as a case in which

12 or 13 people are in the marshal's custody. So I also have

to take into account those -- those issues.

I'm going to do my best to consider all of the

options. But if I get to the place where I'm ready to make a

decision, I'll let you know so that you all can brief quickly

the question; know that it's coming, so get started on it.

MR. ARNOLD: And, your Honor, may I address

Mr. Medenbach's concern? 

I have no doubt that your Honor has taken an oath of

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office and I -- maybe if it would placate the concerns -- I

mean, I -- I have no problem with redoing my oath as a lawyer

at any time. You know, I have no problem swearing under the

Constitution. I don't know if -- if it would address concerns

if your Honor, at some point in the future, just re -- re --

renewed your vows.

THE COURT: Mr. Arnold, please take a seat. I've

taken care of this matter three times now. I'm not going to

take it up again. Mr. Medenbach was allowed to make his point

for the record. 

Have a seat.

MR. ARNOLD: Okay. Thank you, your Honor.

THE COURT: All right. Are there any other matters

we need to do in the public record?

Yes, Mr. Federico?

MR. FEDERICO: Your Honor, the Court provided to the

parties, on April 21st, the draft timeline for a jury plan.

THE COURT: Yes. 

MR. FEDERICO: I know we've already talked about the

grand jury and how that was opposed. But my understanding from

the --

THE COURT: You're right. I needed to get back to

that.

I -- I have received your letter on behalf of all of

the parties in response to my proposal, which suggested some

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agreement and some disagreement. And I think I'm going to have

to enter an order to get this process going.

Preliminary to that order getting started, I am going

to have to develop the initial questionnaire to go with jurors.

I am -- to jurors. I'm going to need to decide the -- the

group from whence those jurors should be drawn, and so we need

to have that decided.

I understand there's an argument about whether the

jurors should be drawn only from the Portland division or

whether they should be drawn elsewhere.

And if you're prepared to make that argument now,

fine. If not, I'll set a date to do it because we're coming

close to the place where we have to get summonses out to the

first group.

As I understand it, the parties are in general

agreement, the Government and defendants collectively, that

summonsing approximately 1500 jurors in the first instance is

reasonable. That that first summons would be the normal

summons to seek the jurors' response as to statutory

exemptions, statutory qualification, and any hardship request,

including as to the length of service.

I appreciate the parties' suggestions that the Court

needs to be as open as possible regarding how long the trial

itself will take. But the disclosure to the jurors has to be

truthful, so that they can evaluate whether in fact they could

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serve without true hardship for the length of time given.

But I -- I agree that we don't want to commit in

advance to a firm end date because things happen. And they

happen the other way, too. Trials end sooner than expected.

I do understand there is a consensus with my proposal

that when we are in trial we will be working four business days

a week. That every week there will be a dark day for the jury,

at least. Now, that might mean we need to work in order that

when the jury comes back, we're ready to go. But to lessen the

burden on the jury, it would be four days a week.

In those weeks that have a national holiday, like

Columbus Day, that's the dark day. We would not go down to

three days. Veterans Day, that would be the dark day. We

would not go down to three days.

And I don't know, yet, whether it's going to be the

same day of the week, but I think people would like it to be

Fridays, just so that it -- it is connected with a weekend, and

then we can manage our time. And that's sort of where I'm

headed there.

With respect to the Thanksgiving holiday, if we were

still in trial for Thanksgiving, I think it would be important

to alert the jurors ahead of time that there would not be court

on the Wednesday before Thanksgiving day, nor the Friday after

Thanksgiving day because it is so common for people to plan to

travel, and so forth.

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And, likewise, if we were still in trial as of around

the Christmas holiday, we would have the same situation. I

don't know what day of the week the Christmas holiday is on.

Anyway, but -- the Christmas Eve holiday, the day of

Christmas, the year-end holidays and any others that we need to

address.

So I need to get to that point. But I think the one

impediment, at this point, is really the question about the

draw; from where to draw.

The plan -- the jury plan -- I was just told

Christmas is a Sunday. So maybe we would add a third day to

that weekend, the following Monday, since Christmas Eve is a

Saturday. Heaven forbid that we're still doing this by then.

You know, I'm hoping the case can reasonably be resolved by

then. But all I can do is hope at this point.

The jury plan adopted in this district calls for the

jury to be drawn from the Portland division because that's

where the case was indicted.

The letter response suggested that the jury be drawn

proportionately from the other divisions as well. So not just

the Portland division, but presumably, Mr. Federico, you were

talking about the Eugene division and the Pendleton division

but in a proportional random way. Was that right?

MR. FEDERICO: Yes, your Honor. Well, what I would

like to do is -- I think the only issue from the letter that is

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time sensitive, as the Court just acknowledged, is where the

jury -- the initial summons are issued. And so I am prepared

to speak on that.

Subsequent to the issuance of the letter on April

27th, I also had a chance to speak with Ms. Glover and

Mr. Minetto. And I appreciate their assistance in informing me

and others on how this process really works. Because we had

read the jury management plan. Hearing the logistical side

from their end is very helpful.

Also, I tried in the letter to identify for the Court

generally areas in which I could represent that there was

basically unanimity amongst the defendants and areas where

there were not. And I think I can say with confidence that the

defendants in this case do all desire that the jury pool be

beyond the Portland division.

And subsequent to providing the letter, I think there

is also now a consensus that we would ask the Court consider

that the jury summons be first issued exclusively to the

Pendleton division, as the -- all the alleged events occurred

in Harney County. And, again, my understanding is the only

reason this case was brought to the Portland division was for

the logistics, the potential size of the trial.

THE COURT: The grand jury never sits in the

Pendleton division. It's never happened in the District of

Oregon. Grand juries sit in the Portland and the Eugene

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 82 of 94
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division.

MR. FEDERICO: Your Honor -- and so -- but there

would be -- from my understanding from Ms. Glover, first of

all, I don't think there's a legal impediment to issuing

summonses to another division. At least I'm not aware of any

legal authority to the contrary.

And, logistically, there's no impediment, either. So

the only impediment is expense. And that's because --

THE COURT: Well, it's more than that.

The summonses have to be -- the summonses are sent to

jurors who are randomly selected from a qualified wheel.

Presently, the qualified wheel in the Portland division is just

shy of 17,000. And for the Pendleton division is less than a

thousand. There aren't even enough qualified jurors to

potentially summons.

So it could not only be the Pendleton division, in

any event. There just isn't any way we could collect jurors

sufficient to try even the most routine case that way.

MR. FEDERICO: Your Honor, I may have misunderstood

Ms. Glover. I thought she told me there were 2500 from the

Pendleton division, from the master, who would have been

qualified. But -- 

THE COURT: We can't exhaust one list for one trial.

That's part of the entire plan is a proportionate --

now, I'm willing to consider the idea of a proportionate draw

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 83 of 94
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from all the divisions if there's a reason to do that. The

argument that somehow the defendants are prejudiced because

jurors from the Portland division are biased against them is, I

think, totally speculative.

DEFENDANT RYAN BUNDY: (Standing.)

THE COURT: Please have a seat. Wait your turn.

DEFENDANT RYAN BUNDY: (Complying.)

THE COURT: I have done this work a long time. Been

a trial judge here in this court since 1999. The argument that

the jurors from the Portland division are liberal belies the

fact that they come from the entire quadrant of the upper --

upper northwest of the state of Oregon. This is not a

Multnomah County pool.

Any lawyer who's tried a case in this courthouse and

in the one across the street repeatedly reacts that the jurors

here are far more conservative, drawn from the Portland

division.

Again, this notion that there is bias is a risk that

I think is a balanced risk. Balanced of a risk of bias against

the Government for the very arguments you all are working hard

to develop. That this was not a proper decision to prosecute.

It is not a case that should have been brought. Those

arguments, I think, are as fairly considered here as elsewhere.

But my point is simply it's presumptuous to suggest

that the Portland division draw would present a jury panel

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 84 of 94
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that's biased toward the Government because, frankly, I've

never seen that. Never.

It's a far more conservative crowd on the -- on the

points you've been arguing, and on Mr. Bundy's motion itself

about this notion that somehow the Government has an advantage

here.

But that said, the real question is from where to

draw, and that is a legal question.

If -- since your position is only reflected in a

letter to me in response to a draft that I sent to you, I think

it would be appropriate for there to be a formal brief filed on

the question. And it could be both sides filing a joint brief,

just to state the position.

I know Mr. Ryan Bundy wants to address this too, so I

want to be sure his position is included in it.

For your part, Mr. Federico, how long do you think it

would take to submit a joint brief on -- from where to draw the

jurors for the first summonsing?

MR. FEDERICO: Your Honor, if I could have until a

week from today or next Wednesday, which is the same day we're

submitting the proposal for arguments, I think that would be

sufficient.

THE COURT: Okay. And you'll include Mr. Ryan Bundy?

MR. FEDERICO: I absolutely will, yes.

THE COURT: All right. And you wanted to say, sir?

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 85 of 94
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DEFENDANT RYAN BUNDY: Yes, your Honor. It doesn't

matter necessarily whether -- that we consider there's a

prejudice or not one way or the other. It's the supremacy of

the law, which as the Constitution states in Article VI of

the -- of the amendments that -- that an impartial jury of the

state in the district wherein the crime shall have been

committed, which district shall have been previously

ascertained -- in other words, the accused shall enjoy the

right of a speedy and public trial by the impartial jury of the

state and district wherein the crime shall have been committed.

THE COURT: It's alleged in the Indictment, sir, that

you committed a crime in the District of Oregon. This is a

courthouse in the District of Oregon, and quite literally

consistent with the provision you just read.

DEFENDANT RYAN BUNDY: Okay. But does not that

district -- you said there's subdivisions of that district or

that district that we're talking about -- Pendleton or of

Portland, et cetera --

THE COURT: There's a jury plan. I think you've seen

it. There were citations to it in the motion you filed.

The jury plan talks about divisions for purposes of

how to allocate the work.

DEFENDANT RYAN BUNDY: Okay.

THE COURT: As I say, I want to hear -- I want to see

it in writing, so that I have everybody's arguments in one

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 86 of 94
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place. I'll make a decision because that's the first one that

has to get made, so that we can then also have the next step

being the preparation of these initial summonses.

My -- and my intention in the first presentation was

not to name the case; simply to summons the jurors to a

criminal case to start on September 7th, to last an

undetermined number of weeks. I haven't yet figured out how to

say that, to have them go through the other disqualification

information provided, whether they're no longer a resident of

the state of Oregon, they're over 70 and they get to choose

out, or they're exempt because they're a member of the

military; whatever, to go through that process.

But if you have arguments besides the one you want to

make or if you want to reiterate that argument, Mr. Federico

will work with you and Ms. Ludwig to be sure they're in the

submission.

DEFENDANT RYAN BUNDY: We'll get them in there.

Thank you, your Honor.

THE COURT: All right. So what I do want, then, is a

single joint submission on the place from whence the trial

jurors should be drawn.

I understand you'll make constitutional arguments. I

do want an analysis of the jury plan that is the guiding

standard here in Oregon. And to the extent there's case law --

I know, Mr. Bundy, your motion addressed some of those issues

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 87 of 94
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already. So the work's started. And I'll do my best with what

you give me.

So that will be due next Wednesday. All right?

Is there anything else -- yes, Ms. Baggio.

MS. BAGGIO: Your Honor, with regard to your April

21st message by e-mail, the Court talked about a proposed

message to prospective jurors and a proposed first

questionnaire.

I just wanted to make sure that we're clear, the

Court isn't waiting on us to provide those drafts? Is that --

THE COURT: No. I might ask for somebody to do it,

but I'm going to try to help and do it myself first.

MS. BAGGIO: Thank you.

THE COURT: Yes, Mr. Kohlmetz.

MR. KOHLMETZ: Your Honor, Mr. Patrick has asked me

to raise an issue with the Court and --

THE COURT: Speak up, please, or turn on the mic.

MR. KOHLMETZ: I apologize.

Mr. Patrick has asked me to raise an issue with the

Court, and he does want to address the Court personally.

Let me frame the issue for him.

After the status -- last status conference, as he was

being removed from the courtroom and transported back into

custody, Mr. Patrick reported to me that he had been threatened

and physically accosted by a member of the U.S. Marshals

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 88 of 94
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Service and that threats were made to him regarding his family.

He has been making efforts to determine the identity of the

particular marshal but has been rebuffed.

And he asked that I stand, announce that, and ask

that he be able to address the Court briefly.

THE COURT: Mr. Patrick.

DEFENDANT PATRICK: Your Honor, when I left -- when I

left court last time and went down in the elevator, I was

singled out by one of the U.S. marshals, from the rest of my

co-defendants. It was the first time that that had happened.

And he made comments to my mother would be harmed.

And after -- and I was very upset by it. And I immediately

went in with the rest of my co-defendants, as has happened

every other time. And they asked what had happened. And I

said that he just basically threatened my mother. And I was

instantly removed from the co-defendants and cursed at, and --

and things of that nature.

When I got back to my stall, I called a close

personal friend because I was in very bad shape. My -- my --

my mom was widowed when she was 12 years old -- when I was 12

years old. She's never remarried. And she's a senior citizen.

And so I was very frustrated and not doing well with

that. I then later -- I don't know if it was the next day or

that day -- called my mother. And she advised that the

Marshals Service had made physical contact with her in the

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 89 of 94
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courtroom and asked who she was. And that marshal didn't

identify to her either.

I was then advised that the Marshals Service followed

multiple people from the -- the gallery, out to their vehicles,

or things of that nature. And -- and they felt intimidated.

So besides the threat to my mother, it appears there's some

intent to keep people intimidated from even showing up to the

courtroom.

But my personal issue is my mother. It's given me

anxiety in -- where I -- where I stay. I've tried to report

it. I -- I asked for the identification of the marshal that

pointed it out, and everybody stonewalled me.

I saw the same marshal today in the courtroom --

in -- in transport. I was going to try to identify him in the

courtroom, but he is not present in the courtroom. None of the

marshals wear any identification of any kind. And so these --

you can't determine who's who or what's what.

When I went back to my cell, I reported it to the

county. Said, Hey, listen, there's threats being made. Hoping

some of you would address it.

I don't know who to contact when threats are being

made. I'm just stuck in limbo with -- you know, intimidation

and threats is what's being claimed. And they're being

perpetrated in this direction, but there's no recourse.

THE COURT: Mr. Patrick, I've never had a complaint

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 90 of 94
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like that made. I don't know quite how to react. So I'm going

to bring the issue to the attention of the United States

Marshal.

And I'll be sure -- I'll have your comments

transcribed, and I'll address it to the United States Marshal,

himself, the head marshal.

DEFENDANT PATRICK: Okay. Well --

THE COURT: I don't know what else to do.

DEFENDANT PATRICK: All right.

THE COURT: Mr. Bundy, did you want to say something?

DEFENDANT RYAN BUNDY: I just -- I just wanted to say

that I did witness him being separated the first time and also

the second time. What was said during those points of

separation, I do not know.

THE COURT: There are appropriate reasons for people

to be separated, and it's not the Court's role to manage how

the marshal does his job, which is a difficult job, through

many court security officers and sworn marshals, to ensure that

we have this process today; a place where we can all be in one

room, and quite civilly. I appreciate everyone's participation

today to get through things.

So, Mr. Patrick, that's what I'll do. I'll get your

remarks transcribed. I'll ensure that they get to the marshal

himself.

MR. KOHLMETZ: Your Honor, and if it's of any help, I

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would be perfectly happy to receive any communication, if

anything else is necessary.

THE COURT: All right. All right. Thank you very

much.

Mr. Arnold.

MR. ARNOLD: Your Honor, I just wanted to -- as an

officer of the court -- let you know that I saw marshals

purportedly following. I just assumed it was because there was

outstanding fugitives, that they were just following people.

But I was speaking to a witness outside of Starbucks, and a

gentleman in the room sat, you know, quietly around the corner

and didn't interfere with my conversation, and purportedly

followed the individuals on to their next encounter. And

then --

THE COURT: Mr. Arnold, you well know that there is

security on the perimeter of the building. The marshals have

many obligations to do; not only to protect everyone here, the

judiciary. Many of us have already received numerous threats

in the pendency of the case. So how they do their job is for

them to do.

MR. ARNOLD: Well, I'm not complaining. I just

wanted for the record to let you know that I've witnessed that.

And it was, you know, kind of out -- out of the way and just

seemed to be part of normal routine.

THE COURT: All right. It appears we've concluded

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the public agenda.

Let me ask if there is a need to have an ex parte

agenda, or not.

Does any counsel have a need to raise that?

If not, I'll just call -- call it for today.

MS. BAGGIO: Your Honor, I don't believe we do need

to have an ex parte agenda. The defendants have requested if

we could have a moment before the --

THE COURT: Oh, the -- the defendants as a team

can --

MS. BAGGIO: Yes.

THE COURT: Yes, you can do that.

MS. BAGGIO: Thank you.

THE COURT: All right. So --

MR. BAKKER: Your Honor, just --

THE COURT: I'm sorry. Yes?

MR. BAKKER: On behalf of Mr. Anderson, he has a one

o'clock hearing with Judge Jones, so I just wanted to make

sure --

THE COURT: Right. It's 11:20. Pretty good timing.

So what I understand Ms. Baggio is asking for is the

Government lawyers to leave, the spectators to leave, and

defense counsel and defendants to have a short time to meet,

among yourselves, for case management purposes; but not for

very long. Right?

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Case 3:16-cr-00051-BR Document 737 Filed 06/20/16 Page 93 of 94
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MS. BAGGIO: Yes. Thank you.

THE COURT: Ten minutes?

MS. BAGGIO: Yes, ma'am.

THE COURT: All right. So if all of the spectators,

please, would leave the room; Government's lawyers please leave

the room.

As soon as -- soon as court staff is finished with

their duties, please leave the room. And then the room is in

the hands of the United States Marshals. And we're in recess.

(Conclusion of proceedings.)

--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 16th day of June, 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 737 Filed 06/20/16 Page 94 of 94