Case 3:16-cr-00051-BR

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

UNITED STATES OF AMERICA,

Plaintiff,
v.
AMMON BUNDY, RYAN BUNDY,
SHAWNA COX, DAVID LEE FRY,
JEFF WAYNE BANTA, KENNETH
MEDENBACH, and NEIL WAMPLER,

3:16-cr-00051-BR
ORDER DENYING DEFENDANT
AMMON BUNDYS MOTION
(#1360) TO STAY TRIAL
PROCEEDINGS PENDING
APPEAL

Defendants.

BROWN, Judge.
This matter comes before the Court on Defendant Ammon
Bundys Motion (#1360) to Stay Trial Proceedings Pending Appeal,
which Ammon Bundy filed on September 28, 2016.

The government

filed a Response (#1373) to Defendant Ammon Bundys Motion to

Stay on September 29, 2016.

Pursuant to the Courts Order

(#1226), Defendant Ammon Bundys optional reply memorandum was

due October 4, 2016.

Defendant Ammon Bundy did not timely file a

reply memorandum.
In his Motion Ammon Bundy moves to stay these proceedings on
two bases:

(1) Ammon Bundys Notice (#1359) of Interlocutory

Appeal regarding the Courts Order (#1327) Denying Ammon Bundys

Motion to Enjoin Prosecution and (2) Ammon Bundys Notice (#967)

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ORDER DENYING DEFENDANT AMMON BUNDYS MOTION (#1360) TO STAY

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of Interlocutory Appeal regarding the Courts Order (#903)

denying Ammon Bundys Motion for Release from Pretrial Detention.
On September 29, 2016, after Ammon Bundy filed his Motion to
Stay, the Ninth Circuit Court of Appeals affirmed this Courts
Order (#967) denying Ammon Bundys Motion for Release from
Pretrial Detention and dismissed Ammon Bundys interlocutory
appeal regarding his pretrial detention.
Bundys

Accordingly, Ammon

Notice (#967) of Interlocutory Appeal regarding the

Courts Order (#903) denying Ammon Bundys Motion for Release

from Pretrial Detention no longer provides a basis to stay these
proceedings.
Nevertheless, Ammon Bundy asserts when a court has denied a
request for injunctive relief, the court is required to stay the
proceedings pending appeal of that order.

Thus, Ammon Bundy

maintains his Notice (#1359) of Interlocutory Appeal regarding

the Courts Order (#1327) Denying Ammon Bundys Motion to Enjoin
Prosecution requires this Court to stay the trial proceedings
during the pendency of his appeal.1
Ammon Bundy relies on United States v. McIntosh for the
1

The Court notes it does not appear the Ninth Circuit has
opened a case or assigned a case number regarding Ammon Bundys
Notice (#1359) of Interlocutory Appeal regarding the Courts
Order (#1327) Denying Ammon Bundys Motion to Enjoin Prosecution.
Ammon Bundys Motion to Stay regarding his Notice (#1359) of
Interlocutory Appeal, therefore, is arguably unripe.
Nonetheless, to the extent Ammon Bundys Motion to Stay is ripe,
the Court denies it for the reasons that follow.
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ORDER DENYING DEFENDANT AMMON BUNDYS MOTION (#1360) TO STAY

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proposition that a criminal defendant has a right to an

interlocutory appeal.

United States v. McIntosh, Nos. 1510117,

1510122, 1510127, 1510132, 1510137, 1530098, 1571158,

1571174, 1571179, 1571225, 2016 WL 4363168 (9th Cir. Aug. 16,
2016).

In McIntosh the defendants in consolidated cases were

being prosecuted for alleged violations of various provisions of

the Controlled Substances Act, 21 U.S.C. 801, et seq.,
regarding the distribution of marijuana.
4363168, at *2.

McIntosh, 2016 WL

In December 2014 Congress prohibited the

Department of Justice (DOJ) from expending appropriated funds to

prevent states from implementing their own State laws that
authorize the use, distribution, possession, or cultivation of
medical marijuana.

Id., at *2 (quoting Consolidated and Further

Continuing Appropriations Act, 2015, Pub. L. No. 113235, 538,

128 Stat. 2130, 2217 (2014)).

The defendants in McIntosh moved

to enjoin or to dismiss their prosecution on the basis that it

violated Congresss direction to the DOJ that it not expend
appropriated funds for the purpose of preventing states from
implementing their state laws regarding medical marijuana.
at *1-*2.

Each of the district courts in which the respective

defendants were charged denied the defendants motions.

*2.

Id.,

Each defendant filed an interlocutory appeal.

Id., at

Id., at *2.

The Ninth Circuit noted court of appeals jurisdiction is

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typically limited to final decisions of the district court.

Id., at *3 (quoting United States v. RomeroOchoa, 554 F.3d 833,
835 (9th Cir. 2009)).

In criminal cases, this prohibits

appellate review until after conviction and imposition of

sentence.

Id., at *3 (quoting Midland Asphalt Corp. v. United

States, 489 U.S. 794, 798 (1989)).

The court noted, however,

that [u]nder 28 U.S.C. 1292(a), the courts of appeals shall

have jurisdiction of appeals from:

(1) Interlocutory orders of

the district courts of the United States . . . granting,

continuing, modifying, refusing or dissolving injunctions, . . .
except where a direct review may be had in the Supreme Court.
McIntosh, 2016 WL 4363168, at *3.
In McIntosh, the Ninth Circuit concluded because each of the
defendants sought injunctive relief to enjoin their prosecutions,
the Ninth Circuit had jurisdiction over the interlocutory
appeals.

Id., at *4.

The Ninth Circuit, however, noted the

circumstances in McIntosh were unusual.

Id., at *5.

The court

noted
in almost all federal criminal prosecutions, injunctive
relief and interlocutory appeals will not be
appropriate. Federal courts traditionally have
refused, except in rare instances, to enjoin federal
criminal prosecutions.
Id.

Because Congress has enacted an appropriations rider that

specifically restricts DOJ from spending money to pursue certain

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activities, the Ninth Circuit found the circumstances in

McIntosh sufficient to establish appellate jurisdiction under
1292(a).

Id.

This case, however, is not like McIntosh.

Ammon Bundy

characterizes his arguments in his Motion (#1248) to Enjoin

Prosecution as relating to this Courts subject-matter
jurisdiction.

Ammon Bundys contentions that the government is

not constitutionally authorized to own the Malheur National

Wildlife Refuge, however, are more properly characterized as a
legal attack on the sufficiency of the Superseding Indictment.
In McIntosh the Ninth Circuit found it had jurisdiction over the
interlocutory appeal in order to adjudicate the extraordinary
question whether the DOJ had authorization to engage in the
prosecution.

In this case, however, Ammon Bundys assertions

constitute a legal attack on the Superseding Indictment that is

common in criminal cases.

In other words, although Ammon Bundy

characterizes his requested relief as injunctive, the issues

raised in his Motion are, in fact, the type of ordinary legal
motions in a criminal case for which genuine injunctive relief is
not appropriate.

Accordingly, unlike in McIntosh, the court of

appeals does not have jurisdiction over Ammon Bundys

interlocutory appeal pursuant to 1292(a).
Under the collateral order doctrine, a nonfinal order is

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ORDER DENYING DEFENDANT AMMON BUNDYS MOTION (#1360) TO STAY

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appealable if it:

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(1) conclusively determine[s] the disputed

question; (2) resolve[s] an important issue completely separate

from the merits of the action; and (3) is effectively
unreviewable on appeal from a final judgment.

United States v.

Bundy, No. 16-30080, 2016 WL 3430564, at *1 (9th Cir. June 22,

2016)(quoting United States v. RomeroOchoa, 554 F.3d 833, 836
(9th Cir. 2009)).

Although the Courts Order (#1327) Denying

Ammon Bundys Motion to Enjoin Prosecution conclusively resolved

Ammon Bundys arguments regarding the federal governments
constitutional authority to own the Malheur National Wildlife
Refuge, that Order did not resolve an issue completely separate
from the merits of this case and will be reviewable, if
necessary, on appeal from a final judgment.

Accordingly, this

Courts Order (#1327) Denying Ammon Bundys Motion to Enjoin

Prosecution is not an appealable final order that divests this
Court of jurisdiction over these proceedings.
On this record the Court DENIES Defendant Ammon Bundys
Motion (#1360) to Stay Trial Proceedings Pending Appeal.
IT IS SO ORDERED.
DATED this 7th day of October, 2016.

/s/ Anna J. Brown

ANNA J. BROWN

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ORDER DENYING DEFENDANT AMMON BUNDYS MOTION (#1360) TO STAY

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United States District Judge

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ORDER DENYING DEFENDANT AMMON BUNDYS MOTION (#1360) TO STAY

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