Case 3:16-cr-00051-BR

Document 1420

Filed 10/12/16

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

3:16-CR-00051-BR
GOVERNMENTS RESPONSE TO
DEFENDANT AMMON BUNDYS
OBJECTION RE JURY INSTRUCTION
ON GOVERNMENT INFORMANTS
(#1403)

Defendants.
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 responds to Defendant Ammon Bundys Objection
Regarding Jury Instruction on Government Informants (ECF No. 1403), filed on behalf of the
September 7, 2016, trial defendants.

Case 3:16-cr-00051-BR

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Defendant asks this Court to incorporate a jury instruction to clarify that a defendant
cannot be guilty of a conspiracy if he only conspired with a government agent.
consistent with Ninth Circuit Model Jury Instruction 8.26.

His proposal is

He is not, however, entitled to the

instruction because he has never advanced a theory (or evidence) to this jury that he entered into
a conspiracy with anyone to violate 18 U.S.C. 372.
The government does not dispute the principle that a defendant cannot illegally conspire
with a government agent. United States v. DeBright, 742 F.2d 1196, 1200-01 (9th Cir. 1984).
But to justify a jury instruction on this point, there must be some evidence to sustain it.
Debright, 742 F.2d at 1201.

For example, where evidence at trial demonstrated that defendant

only had direct contact with the government agent, and that she was unlikely to have interacted
with other charged conspiracy members given bad blood between her family and theirs, the
court held that it was error not to tell the jury that defendant was innocent if she only conspired
with a government agent. Id. But when there is no evidence to suggest that a defendant could
be convicted based solely on his agreement with a government agent to commit illegal acts, there
is no need for the instruction. See United States v. Romero, 282 F.3d 683, 689 (9th Cir. 2002)
(holding district court did not plainly err by not including a jury instruction explaining that a
defendant could not conspire with a government agent when defendant never relied on that
theory at trial).
Accordingly, because Ammon Bundy has never advanced a theory or proffered evidence
to suggest that he conspired to violate 18 U.S.C. 372 with a government agent, but with no one
///

Governments Response to Defendant Ammon Bundys Objection Re Jury

Instruction on Government Informants (#1403)

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Case 3:16-cr-00051-BR

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else, this Court should decline his bid to engraft this unnecessary provision into the jury
instructions.
Dated this 12th day of October 2016.
Respectfully submitted,
BILLY J. WILLIAMS
United States Attorney

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

Governments Response to Defendant Ammon Bundys Objection Re Jury

Instruction on Government Informants (#1403)

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