Matthew G. McHenry, OSB 04357

Levine & McHenry LLC

1001 S.W. Fifth Avenue, Suite 1414

Portland, Oregon 97204

503-546-3927

email: matthew@levinemchenry.com

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON

UNITED STATES OF AMERICA, 

Plaintiff, 

vs.

SEAN ANDERSON, 

Defendant.

)

)

)

)

)

)

)

)

)

)

No. 3:16-cr-00051-BR-12

DEFENDANT’S RESPONSE TO 

GOVERNMENT’S OPPOSITION TO 

DEFENDANT ANDERSON’S 

MOTION FOR PRETRIAL RELEASE 

Sean Anderson, through his attorney Matthew G. McHenry, files the 

following Response to the Government’s Opposition to Defendant 

Anderson’s Motion for Pretrial Release (Docket No. 507) (Opp.) 

Case 3:16-cr-00051-BR Document 508 Filed 05/03/16 Page 1 of 7
2

MEMORANDUM

The bulk of the assertions in the government’s memorandum have 

already been fully addressed in Mr. Anderson’s prior pleadings and exhibits 

(Docket Nos. 489 and 490). Responses to specific portions of the 

government’s pleading follow: 

A. The Government’s Unsupported Assertions Are Not Evidence.

The government asserts, with no authority, that the conduct Mr. 

Anderson engaged in “by its definition was intended to prevent federal 

employees from accessing their workplace.” Opp. 4. The government has 

simply stated its burden of proof at trial—whether federal government 

employees were impeded by any conduct of Mr. Anderson, and likewise 

whether Mr. Anderson had a culpable mental state, is a question for the jury. 

The government simply restating the charge is not evidence this Court 

should consider. Likewise, The government’s claim on page 5 that the 

“evidence against the defendant at this stage is strong” is simply an 

assertion. Id. at 5. In any event, Mr. Anderson is presumed innocent, and as 

such the weight of the evidence is “the least important of the various factors”

under the Bail Reform Act. United States v. Motamedi, 767 F.2d 1403, 1408 

(9th Cir. 1985). 

Case 3:16-cr-00051-BR Document 508 Filed 05/03/16 Page 2 of 7
3

B. That Mr. and Mrs. Anderson Came and Went From The Refuge 

Does Not Auger In Favor Of Detention.

The government argues that Mr. Anderson, who along with his wife 

came and went from the refuge on multiple occasions, staying only a few 

nights at a time, shows Mr. Anderson’s willingness to “insert[] himself into 

a dangerous situation.” Opp. 4. This is incorrect, as shown by the letter 

written by Iva and Rich Henderson of Riggins, Idaho (attached to 

Defendant’s Supplemental Memorandum, Docket No. 490) (Henderson 

Letter). The Andersons first went to the refuge just to “find out for 

themselves what was really going on.” Henderson Letter. The Andersons 

returned a few days later and reported that “everyone there was very 

friendly, peaceful, and caring. They never saw or heard anyone threaten or 

intimidate anyone, in fact, people from the local area and all parts of the 

country were coming and going all the time.” Id. In short, the Andersons 

coming and going from the refuge was not, in their minds, inserting 

themselves into a dangerous situation. Rather, they saw a peaceful protest 

with at least some support from the local community.

C. Mr. Anderson Did Not Receive The Order To Safely Disperse 

From The Government.

The government claims “the Andersons elected to stay at the Refuge

while others chose to leave.” Opp. 4. This is a mischaracterization. On 

Case 3:16-cr-00051-BR Document 508 Filed 05/03/16 Page 3 of 7
4

January 27, 2016, the day after Lavoy Finnicum was killed, the FBI made 

calls to several individuals on the refuge, informing them that if they left at 

that time, they could do so safely and without arrest. Mr. and Mrs. 

Anderson, along the other few individuals who remained after the call to 

disperse, never received that offer from the government. After Mr. 

Finnicum was killed, panic set in at the refuge. Mr. and Mrs. Anderson were 

not at a central location on the refuge, did not have any radio communication 

with others on the refuges, and never heard a call or offer to disperse by the 

government. The Andersons did not ignore the offer and simply elect to 

stay. The order to disperse was not communicated to them.

D. The Government Misstates Mr. Anderson’s Criminal History. 

The government has mischaracterized Mr. Anderson’s criminal 

history, claiming it “includes multiple misdemeanor convictions that 

involved domestic violence.” Opp. 6. In fact, Mr. Anderson has no 

misdemeanor convictions involving domestic violence. The “multiple 

misdemeanor convictions” referred to total two. Mr. Anderson has a 2002 

misdemeanor conviction for Criminal Trespass, for which he received a fine. 

He has a 2008 misdemeanor conviction for Disorderly Conduct, for which 

he also received a fine. In 2009, Mr. Anderson was convicted of a violation

(not a crime) for Disorderly Conduct, and according to the report received 

Case 3:16-cr-00051-BR Document 508 Filed 05/03/16 Page 4 of 7
5

from Pretrial Services, that violation was notated as a “Domestic Abuse 

Incident.” The government’s exaggeration of Mr. Anderson’s criminal 

history is incorrect. 

E. Dr. Millkey’s Risk Assessment Should Not Be Discounted, But 

Rather Embraced by the Court as a Professional Scientific 

Evaluation.

Dr. Alexander Millkey, Psy.D., conducted an extensive and 

comprehensive psychological evaluation and risk assessment for violence. 

The government invites this Court to “discount” the risk assessment because, 

in the government’s words, Dr. Millkey’s assessment is “pure guess” and 

that his risk mitigation strategies are “equally flawed.” Opp. 7. The 

government is wrong.

Far from a “pure guess,” Dr. Millkey based his assessment on 

numerous psychological tests and violence risk assessment tools that are 

widely accepted in his field, including the Hare Psychopathy ChecklistRevised (PCL-2), the Historical Clinical Risk Management-20 (HCR-20), 

and the Violence Risk Appraisal Guide, Revised (VRAG-R). E.g., United 

States v. Mahoney, 53 F.Supp.3d 401, 412–15 (D.Mass 2014) (noting that 

the PCL-2, HCR-20, and VRAG assessments are admissible under Daubert

principles as they have been tested, subject to peer review, and have 

widespread acceptance). In Mahoney, the government argued for the 

Case 3:16-cr-00051-BR Document 508 Filed 05/03/16 Page 5 of 7
6

admissibility of the risk assessment, apparently not sharing the view of the 

government in the instant case that risk assessments are a “pure guess.” 

Moreover, the government routinely relies on such “risk assessments” when 

the assessments work in its favor. E.g., United States v. Guidry, 2008 WL 

3906792, at *1 (D.Or. Aug. 22, 2008) (defendant’s “most recent risk 

assessment determined that he continues to be armed and dangerous”).

Dr. Millkey’s assessment is based on a scientific approach utilizing 

multiple, widely accepted psychological tools and tests. Dr. Millkey’s CV

(attached as an exhibit to Docket No. 489) attests to his expertise and

professional approach. The risk assessment is not guesswork—it is a valid, 

comprehensive assessment of Mr. Anderson’s future risk for violence. This 

Court should not discount the assessment, but rather should embrace it as 

Judge Acosta did as the best and most reliable mechanism to determine Mr. 

Anderson’s risk of violence. 

/// /// ///

Case 3:16-cr-00051-BR Document 508 Filed 05/03/16 Page 6 of 7
7

CONCLUSION

For reasons set forth in this pleading and Mr. Anderson’s prior 

pleadings, and for reasons that will be submitted at the review hearing, the 

Court should affirm the decision of Judge Acosta, agree with the

recommendation of U.S. Pretrial Services, and order Mr. Andersons’ release 

pending trial.

Respectfully Submitted this 3rd day of May, 2016:

/s/ Matthew G. McHenry

Matthew G. McHenry

Counsel for Sean Anderson

Case 3:16-cr-00051-BR Document 508 Filed 05/03/16 Page 7 of 7