Case 3:16-cr-00051-BR

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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.,

3:16-CR-00051-BR
GOVERNMENTS RESPONSE
TO DEFENDANT MEDENBACHS
MOTIONS IN LIMINE (#995)

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 Medenbachs Motions In
Limine (ECF No. 995), filed on behalf of all defendants.

Case 3:16-cr-00051-BR

I.

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Governments Position
Defendants are charged in Count 1 of the Indictment with conspiracy to impede officers

of the United States, specifically the Bureau of Land Management and the U.S. Fish and Wildlife
Service, from discharging their duties at the Malheur National Wildlife Refuge in Harney
County, Oregon, by force, intimidation, and threats in violation of 18 U.S.C. 372.

Count 2

charges possession of firearms and dangerous weapons in federal facilities in violation of 18

U.S.C. 930(b) and 2 with the intent that the firearms and dangerous weapons be used in the
commission of a crime, specifically Count 1. The charged conspiracy began on or about
November 5, 2015, and continued through February 12, 2016.
Defendant Medenbach, on behalf of all defendants, seeks to preclude the government
from introducing four categories of evidence on grounds that the evidence is irrelevant and
unfairly prejudicial.1

Because this evidence is highly relevant and not unduly prejudicial,

defendants Motion In Limine should be denied.

II.

Legal Argument
Relevant evidence is evidence that (1) has any tendency to make a fact more or less

probable than it would be without the evidence and (2) the fact is of consequence in determining
the action. Fed. R. Evid. 401. A fact of consequence is not limited to the ultimate issue or
elements of a case. Instead, a fact of consequence can be any step along a path of inference that
leads to an ultimate fact. See Old Chief v. United States, 519 U.S. 172, 179 (1997). To be
relevant, evidence need not be conclusive proof of a fact sought to be proved, or even strong

A fifth argument, that the governments proof must be limited due to First Amendment issues
is addressed by the defense and the government in a separate Motion In Limine.

Governments Response to Defendant Medenbachs Motions In Limine (#995)

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evidence of the same. All that is required is a tendency to establish the fact at issue. See
United States v. Curtin, 489 F.3d 935, 943 (9th Cir. 2007). To be relevant, evidence need not
conclusively decide the issue in the case, nor make the proposition appear more probable, but it
must in some degree advance the inquiry. United States v. Causey, 748 F.3d 310, 316 (7th Cir.
2014) (photographs of homes purchased in mortgage fraud scheme taken after period of criminal
activity relevant to show characteristics of houses and help witnesses explain experiences).
Similarly, evidence that makes a fact of consequence to a defense less likely is relevant in the
governments case-in-chief. See Curtin, 489 F.3d at 940 (Federal courts repeatedly have held
that the government may offer evidence in its case-in-chief in anticipation of an expected aspect
of the defense.). Relevant evidence may be excluded if its probative value is substantially
outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue
delay, wasting time, or needlessly presenting cumulative evidence.

A.

Fed. R. Evid. 403.

Testimony by BLM and U.S. Fish and Wildlife Service Employees

Defendants contend that the government should not be permitted to introduce evidence
that their actions placed employees of the Bureau of Land Management and the U.S. Fish and
Wildlife Service in subjective fear. (Defs. Mot. 5). They argue that none of these defendants
directed a threat, violence, or any other intimidating conduct towards any employee. (Id.).
That is a disputed issue of fact that will be presented to the jury. While the government does not
have to prove that any employee was placed in actual fear, evidence from the employees will be
highly probative of the central issue of whether defendants conspired to impede them from
discharging their duties. It is not unfairly prejudicial. The testimony of victims and other
individualssubjective or otherwiseis routinely admitted as evidence of a defendants intent.
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This case is no different.

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Whether the victims in this case were indeed in fear of defendants is

evidence of whether their conduct was threatening or intimidating and, therefore, whether they
entered into a conspiracy to engage in such conduct. The governments evidence is analogous
to a bank robbery; the government is entitled to present evidence that the teller was actually
scared by the defendants actions even though instilling fear is not required for conviction.
Proof that federal employees were in fact deterred from going to work shows that defendants
were successful and it is probative of the fact they succeeded in effectuating the object of their
conspiracy. Alternatively, the reactions of victims and community members show the success
of the venture itself, and this evidence is proof analogous to a fraudulent schemes successthe
government would typically be permitted to show how much money a defendant defrauded his
victims out of, even though it isnt required to establish the fraud scheme.

Similarly, in a drug

conspiracy, the government is not obligated to prove an overt act, but is routinely permitted to
present evidence that the conspiracy achieved its objectives by delivering controlled substances.
Again, the ventures success supports the requisite mens rea.
The evidence is also relevant to a fact of consequence related to the defense theory. In
his Motion, defendant Medenbach clearly previews the defense theory. First, he declares that he
and his co-defendants had no intent to impede federal officers from discharging their official
duties. (Defs. Mot. 4). Instead, they merely intended to bring attention to perceived
government injustices. (Id.). He further characterizes defendants actions at the Refuge as
peaceful, suggesting that if anyone assigned to work at the MNWR actually showed up for work
they would have been met by numerous people volunteering to help maintain the refuge for the
benefit of Harney County, including Mr. Medenbach. (Id.).
Governments Response to Defendant Medenbachs Motions In Limine (#995)

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While it is true that the elements of Count 1 do not include proof that a federal officer
was subjectively affected by defendants actions, that does not make the evidence irrelevant.
The impact that defendants actions had on the employees of the Bureau of Land Management
and the U.S. Fish and Wildlife Service is probative evidence of defendants intent to impede
them from performing their duties by force, intimidation, or threats. The evidence is also
important to rebut defendants claim that they gathered for an unrelated purpose and were ready
and willing to help Refuge employees. See Curtin, 489 F.3d at 94850 (in prosecution for
traveling interstate to have sex with minor, evidence defendant possessed reading materials
involving sex with children admitted as relevant evidence in governments case-in-chief to rebut
defense that defendant lacked intent to engage in sex with a minor).

B.

Evidence Regarding Impact in Harney County

Contrary to defendants claim, the government will present very limited evidence from
those not employed by the federal government regarding the impact defendants had on Harney
County. This evidence will not focus on individual fears. Instead, Sheriff Dave Ward will
testify that he was approached by Ammon Bundy, Ryan Payne, and others who demanded that
he protect the Hammonds and rid Harney County of the federal government. He will testify
about these interactions and how the defendants presence impacted the community. Similarly,
Judge Steve Grasty will talk about defendants efforts to enlist the local government to protect
the Hammonds and force the federal government from Harney County. He will also describe
the impact this had on his community including the closure of schools and cancellation of
community events. This testimony is relevant for several reasons. Harney County is a small
community. Unlike the defendants, the federal officials that defendants conspired to impede
Governments Response to Defendant Medenbachs Motions In Limine (#995)

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live and work in this community. The Indictment charges defendants with conspiring to impede
these men and women from discharging their duties at the Refuge and other locations in Harney
County. Defendants actions were not limited to the Refuge. Notably, Medenbach and Ryan
Bundy placed closed signs on the BLM District Office in Hines, Oregon, and defendant
Medenbach and others placed Malheur Resource Center signs on government vehicles that
they drove into town. Coconspirators were frequently observed in town carrying weapons.
The impact that this had on the community is powerful evidence that the conspiracy achieved its
objective of impeding federal officials by force, intimidation, and threats.

C.

Evidence Regarding Damage to the Malheur National Wildlife Refuge and

BLM

Defendants urge the Court to preclude the government from introducing evidence that the
armed occupation of the Refuge damaged the property. (Defs. Mot. 9). Defendants claim that
the damage to the Refuge is only relevant if it was caused or directed by the defendants. All of
the damage to the Refuge is a direct result of defendants conspiracy. Ammon Bundy and
others called upon people to come to the Refuge to live indefinitely. The fact that many
responded to this call, moved into the Refuge, took up residence in offices and shops, used
government equipment as their own, dug defensive trenches, and through their actions caused
extensive damage to the property, was reasonably foreseeable to the defendants. It is strong
evidence of defendants intent to impede federal officers from doing their jobs. In fact, the
damage and disruption caused by defendants continues to thwart federal officials from fully
discharging their duties to this day.
///

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D.

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Evidence Regarding Firearms and Ammunition

Defendants urge the Court to preclude the government from introducing guns and
ammunition that are not attributable to the defendants on trial. (Defs. Mot. 11). Firearms
played a critical role in this case. Defendants posted armed guards at the entrances to the
Refuge, had armed patrols, and posted armed guards in a watchtower. On multiple occasions,
defendants and coconspirators talked openly about the importance of firearms. They explained
that they had firearms to ensure that they would not be removed from the Refuge, and they called
upon others to come to the Refuge with firearms. The firearms are also direct evidence against
defendants Ammon Bundy, Ryan Bundy, Shawna Cox, David Fry, and Jeff Banta on Count 2.
All of the firearms and ammunition the government will introduce at trial are linked to
the armed occupation of the Refuge. The government has reduced the number of firearm and
ammunition exhibits to approximately 250. Defendants suggestion that the evidence should be
limited to firearms and ammunition attributable to the defendants on trial ignores the law of
conspiracy. Defendants called on others to bring firearms to the Refuge. Once there,
defendants used these firearms to impede federal officers from doing their jobs by force,
intimidation, and threats. They are directly relevant to Counts 1 and 2 and are not unfairly
prejudicial.
III.

Conclusion
The government shares defendants interest in completing this trial before the end of

October and believes that it can be done.

through relevant evidence.

However, the government is entitled to prove its case

The evidence that defendants seek to preclude the government from

offering is highly probative in part because it belies defendants claims that they were peaceful
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protesters who had no intention of impeding federal officials and only desired to repair and
maintain federal facilities for the benefit of the people of Harney County.

Rule 403 allows the

Court to exclude evidence if its probative value is substantially outweighed by unfair prejudice.
However, as Judge Merrick Garland has observed:
Rule 403 does not provide a shield for defendants who engage in outrageous acts,
permitting only the crimes of Caspar Milquetoasts to be described fully to a jury. It
does not generally require the government to sanitize its case, to deflate its
witnesses testimony, or to tell its story in a monotone. . . . It does not bar powerful,
or even prejudicial evidence. Instead, the Rule focuses on the danger of unfair
prejudice, and gives the court discretion to exclude evidence only if that danger
substantially outweigh[s] the evidences probative value. See Fed. R. Evid. 403
(emphases added).
United States v. Gartmon, 146 F.3d 1015, 1021 (D.C. Cir. 1998). Defendants in this case
engaged in outrageous acts. The fact that the governments evidence illustrates defendants
illegal conduct does not amount to unfair prejudice. The probative value of the evidence
substantially outweighs any unfair prejudice. The evidence should not be excluded.
Dated this 17th day of August 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 Defendant Medenbachs Motions In Limine (#995)

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