Case 3:16-cr-00051-BR

Document 1123

Filed 08/29/16

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Tiffany A. Harris OSB 02318

Attorney at Law

333 SW Taylor St., Suite 300

Portland, Oregon 97204
Tel: (503) 782-4788
tiff@harrisdefense.com
Standby Counsel for Shawna Cox

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
UNITED STATES OF AMERICA,

3:16-CR-00051-BR-7
JOINT STATEMENT
REGARDING JURY
INSTRUCTION DEFINING
TERMS FOR COUNT 1

Plaintiff,
v.
SHAWNA COX.
Defendant.

Shawna Cox, with the assistance of standby counsel, Tiffany A. Harris, submits this joint
statement regarding the terms defined on page 20 of the preliminary jury instructions, relating to
count 1 of the indictment. That section provides:
For purposes of count 1, Officer of United States Fish and Wildlife Service
and/or Bureau of Land Management means any person who is employed full
time or part time by The United States Fish and Wildlife Service or the Bureau of
Land Management.
DEFENSE POSITION
The defense position is that this is not a correct statement of the law because Congress
did not intend 18 U.S.C. 372 to include employees. The statute was enacted in 1861 as a
wartime measure. It was intended to protect a fragile democracy by disrupting conspiracies
capable of threatening the core functions of government by targeting officers of the United
USDC Oregon Case 3:16-CR-00051-BR
Joint Statement Regarding Jury Instructions

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States. Other criminal laws already prohibit impeding and interfering with employees working
for federal agencies. See e.g., 18 U.S.C. 111 (Assaulting, Resisting, or Impeding Certain
Officers or Employees). In the 150 years since Congress passed 372, it enacted or amended
other criminal laws to include employees,1 but never added employees to the text of 18 U.S.C.
372. Congress did not intend officer to mean officers and employees in 372, while
giving officers and employees independent meanings in other criminal statutes.2 As set out
in greater detail in the defenses memorandum opposing judicial notice (Filed as Docket No.
1007 and included herein by reference), courts interpreting similar statutes draw a distinction
between officer and employee and anchor the definition of officer in Article II, Section 2
of the Constitution. The Court should adopt that definition in the jury instructions, but in any
event, it is not a correct statement of the law to say that officers means employees for
purposes of 18 U.S.C. 372.
GOVERNMENT POSITION
The governments position regarding this issue is accurately reflected in its Trial
Memorandum and the Courts Second Draft of Preliminary Jury Instructions. The governments
position is that the term officer of the United States Fish and Wildlife Service and/or Bureau of
Land Management means any person employed either full-time or part-time by the United
States Fish and Wildlife Service or Bureau of Land Management.
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1

18 U.S.C. 111; 18 U.S.C. 1114 (Protection of Officers and Employees of the United States); 18 U.S.C. 872
(Extortion by Officers and Employees); 18 U.S.C. 654 (outlawing embezzlement by an officer or employee)
2
Other cases parsing 372 further illuminate the text of the statute by instructing that the first clause (conspire
to prevent by force, intimidation or threat, any person from assuming an office, trust, or place of confidence under
the United States or from discharging any duties thereof) applies to a distinct period of time before a person
assumes an office or before he begins to discharge any duties thereof. United States v. Gerhard, 615 F3d 7, 21 (1st
Cir. 2010) (Prevent describes conspiracies to disrupt an officers duties before the officer begins to discharge
them) (Emphasis in the original). Thus, the statute applies to two classes of victims: persons who have been
prevented from assuming an office or performing the duties thereof or officers of the United States. United States
v. DeMott, 2005 U.S. Dist. LEXIS 37599 (N.D. Ny 2005) at p. 4.
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Respectfully submitted,
/S/
Tiffany Harris
Tiffany A. Harris
Standby Counsel for Defendant Shawna Cox
Reviewed and approved by
/S/
Shawna Cox
Shawna Cox
Pro Se Defendant

USDC Oregon Case 3:16-CR-00051-BR

Joint Statement Regarding Jury Instructions