Case 3:16-cr-00051-BR

Document 1309

Filed 09/20/16

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BILLY J. WILLIAMS, OSB #901366

United States Attorney
District of Oregon
ETHAN D. KNIGHT, OSB #992984
GEOFFREY A. BARROW
CRAIG J. GABRIEL, OSB #012571
Assistant United States Attorneys
ethan.knight@usdoj.gov
geoffrey.barrow@usdoj.gov
craig.gabriel@usdoj.gov
1000 SW Third Ave., Suite 600
Portland, OR 97204-2902
Telephone: (503) 727-1000
Attorneys for United States of America

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON
UNITED STATES OF AMERICA
v.
AMMON BUNDY, et al.,
Defendants.

3:16-CR-00051-BR
GOVERNMENTS RESPONSE
TO DEFENDANTS
DISCOVERY MOTIONS
(#1206, 1207, 1208, 1209,
1211, 1212, 1213, 1224)

The United States of America, by Billy J. Williams, United States Attorney for the
District of Oregon, and through Ethan D. Knight, Geoffrey A. Barrow, and Craig J. Gabriel,
Assistant United States Attorneys, hereby submits this response in opposition to defendant Ryan
Bundys discovery motions (ECF Nos. 1206, 1207, 1208, 1209, 1211, 1212, 1213, 1224), filed
on behalf of all defendants.

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Defendant Ryan Bundy filed eight different motions to compel discovery, seven on
September 7 and one on September 8, 2016.

The government has met and continues to meet its

discovery obligations. Defendants claims that he has not received all of the governments
discovery are not only false, but are also contradicted by his recent Motion to Continue the trial
(ECF No. 1268) in which he claims that he needs at least four more months to review the
voluminous discovery provided by the government.
Motion for Discovery, ECF No. 1206
Ryan Bundys Motion seeking production of a list of expert witnesses and summaries of
any expert witness testimony should be denied as moot.

The government does not intend to

offer any expert testimony in this case.

Motion for Disclosure, ECF No. 1207
Defendant asks that the government disclose the identity of any informants.
Motion should be denied because it is untimely.

This

If this Court considers the merits, the

government has disclosed information provided by confidential sources, but does not intend to
call any of those sources as witnesses. Defendant cannot compel disclosure of their identities
unless he can demonstrate that disclosure is either relevant and helpful to his defense or essential
to a fair determination of the case. Roviaro v. United States, 353 U.S. 53, 60-61 (1957).
Defendants have failed to meet this threshold showing.
If this Court were nevertheless to consider compelled disclosure, the factors this Court
must consider include: (1) the degree of the informants involvement in the criminal activity;
(2) relation between the defense and the informants likely testimony; and (3) the governments
Governments Response to Defendants Discovery Motions
(#1206, 1207, 1208, 1209, 1211, 1212, 1213, 1224)

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interest in non-disclosure. United States v. Gonzalo-Beltran, 915 F.2d 487, 489 (9th Cir. 1990).
This process would likely require an ex parte evidentiary hearing, which is another reason why
the Motion should have been filed on time, and pretrial.
Motion for Discovery, ECF No. 1208
Defendant seeks discovery of co-defendant and co-conspirator statements that the
government intends to introduce at trial under Fed. R. Crim. P. 801(d)(2)(E).
has provided all co-defendant and co-conspirator statements to defendants.

The government
This has been the

subject of litigation during the pretrial conference. No obligation exists under the Rules or case
law for the creation of a separate list of statements that would fall under this particular
evidentiary rule.
Motion for Discovery, ECF No. 1209
Defendant seeks a court order directing federal, state, and local law enforcement not to
destroy rough notes or recordings. Federal agents are already obliged to maintain their rough
notes.

United States v. Harris, 543 F.2d 1247 (9th Cir. 1976). State and local police,

however, are not. States v. Armstrong, 71 Or. App. 467 (1984).

Motion for Production, ECF No. 1211
This Motion mirrors one filed by defendant Shawna Cox seeking disclosure of grand jury
transcripts and materials.

Like that Motion (ECF No. 986), this Motion should be denied

because defendant has failed to show a particularized need for the information.
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///
Governments Response to Defendants Discovery Motions
(#1206, 1207, 1208, 1209, 1211, 1212, 1213, 1224)

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Motion for Production, ECF No. 1212

Bundy seeks to compel production of Jencks materials pretrial; the Motion is at least
partially moot since the trial has already started. The government has complied with its
obligations under the Jencks Act. The government continues to search for information to
ensure no additional Jencks material exists. If any additional information is located, it will be
promptly disclosed.
Omnibus Motion, ECF No. 1213
Defendant filed this Omnibus Motion which repeats many of the above requests and
adds several more topics.

He seeks nine categories of discovery, and he moves to suppress

evidence and post-arrest statements elicited from him.

The suppression motions should be

denied as untimely and for other reasons. His other requests are for the following:
A.

Rule 16 Material
The government has provided this information.

B.

A Pretrial Hearing Regarding the Conspiracy as a Precursor to Admission of

Co-Conspirator Statements Under Rule 801(d)(2)(E)
The government addressed this in its Response to Motion #1246, which raised the

identical claim.

(See ECF No. 1272).

Although some circuits require a preliminary showing

under Rule 104, the Ninth Circuit does not. United States v. Tamez, 941 F.2d 770, 775 (9th Cir.
1991).

Additionally, this has been previously litigated.

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///

Governments Response to Defendants Discovery Motions

(#1206, 1207, 1208, 1209, 1211, 1212, 1213, 1224)

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C.

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An Exhibit List
The government has filed an Exhibit List and four updates thereto. (See ECF

Nos. 957, 993, 1083, 1158, 1244).

D.

An Order Directing Law Enforcement to Retain Rough Notes

This is addressed in the governments response to Motion #1209.

E.

A Witness List

The government disclosed its witness list on July 12, 2016, and filed a formal Witness
List under seal on July 29, 2016. An Amended Witness List was filed August 26, 2016, also
under seal. Defendant also seeks addresses and contact information for government witnesses,
and he wants the government to produce the witnesses for him to interview in an atmosphere
free from government control.

The government is aware, based on materials filed by

defendants, that most of the governments civilian witnesses have been approached and
interviewed by defendants.

As for the remainder, defendant acknowledges that his ability to

interview any witnesses is subject to the witnesses consent. (Def.s Mot. 17).
F.

A Transcription of the Grand Jury Minutes

Defendant claims this may constitute Jencks material.

The government opposed

defendant Shawna Coxs similar request (ECF No. 986) because she failed to show a
particularized need for this information.

Ryan Bundys Motion should be denied for the same

reason.
///
///
Governments Response to Defendants Discovery Motions
(#1206, 1207, 1208, 1209, 1211, 1212, 1213, 1224)

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Interview Notes/Reports for Non-Witnesses

There is no authority to support this request unless the report or notes constitute Brady or
Giglio material.

The government has complied with its discovery obligations.

Therefore, this

request should also be denied.

H.

Notice of Any Prior Bad Acts or Defendants Own Prior Convictions

On July 11, 2016, the government provided defendants with notice of intent to introduce
evidence regarding the events in Bunkerville. (ECF No. 864). The Court ruled on the
admissibility of the Bunkerville issue and the parties entered into a stipulation that was read to
the jury on September 16, 2016.

The government has provided defendants with their criminal

histories.
I.

Early Jencks

This request duplicates that in Motion #1212.

Defendants motion to suppress evidence that is included within this omnibus
discovery request asserts that there was no arrest warrant, he was never arraigned on the
Superseding Indictment, his arrest was based on tainted evidence, and there was no probable
cause for his arrest.

He was of course arraigned in March and there was nothing unlawful about

his arrest.
Defendant also moves to suppress statements he made following his arrest.

There are

no relevant post-arrest statements made by defendant except the statement made on February 3,
2016, to an officer investigating the Finicum shooting, which has been provided to the
defendants in discovery.

The government does not intend to introduce that statement.

Governments Response to Defendants Discovery Motions

(#1206, 1207, 1208, 1209, 1211, 1212, 1213, 1224)

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Motion for Discovery, ECF No. 1224

Defendant again requests the governments witness list, which has been provided to him.
Dated this 20th day of September 2016.
Respectfully submitted,
BILLY J. WILLIAMS
United States Attorney

s/ Geoffrey A. Barrow
ETHAN D. KNIGHT, OSB #992984
GEOFFREY A. BARROW
CRAIG J. GABRIEL, OSB #012571
Assistant United States Attorneys

Governments Response to Defendants Discovery Motions

(#1206, 1207, 1208, 1209, 1211, 1212, 1213, 1224)

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