Case 3:16-cr-00051-BR

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J. Morgan Philpot (Oregon Bar No. 144811)
Marcus R. Mumford (admitted pro hac vice)
405 South Main, Suite 975
Salt Lake City, UT 84111
(801) 428-2000
morgan@jmphilpot.com
mrm@mumfordpc.com
Attorneys for Defendant Ammon Bundy
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
UNITED STATES OF AMERICA,
Plaintiff,
v.
AMMON BUNDY, et al,
Defendants.

Case No. 3:16-cr-00051-BR
DEFENDANT AMMON BUNDY’S
SUPPLEMENTAL BRIEF ON JURY
INSTRUCTIONS
District Judge Anna J. Brown

In reviewing jury instructions, the court must consider whether the instructions as a
whole are “misleading or inadequate to guide the jury's determination.” United States v. Pazsint,
703 F.2d 420, 424 (9th Cir. 1983) (citing Stoker v. United States, 587 F.2d 438, 440 (9th
Cir.1978)). Additionally, “[i[t is well established that a criminal defendant is entitled to adequate
instructions on the defense theory of the case.” Conde v. Henry, 198 F.3d 374, 379 (9th Cir.
1999); see also United States v. Mason, 902 F.2d 1434, 1438 (9th Cir. 1990) (“A defendant is
entitled to have the judge instruct the jury on his theory of defense, provided that it is supported
by law and has some foundation in the evidence.”). For these reasons, and the explanations
offered below, Defendant Ammon Bundy requests that the court modify the existing instructions
and supplement them as follows:
1.

The Court should delete, and where necessary replace, the word “impede” so that it does

not appear in the instructions. See the current version of jury instructions at pages 14, 16, 18, 19,
21, 22. In this case, defendants are not charged with conspiring to “impede,” but rather

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conspiring to “prevent” officers of the United States from carrying out their duties by force,
threat or intimidation. 18 U.S.C. § 372. This is a specific subset of § 372 and is separate and
apart from sections referencing “impede.” The court has already determined, and Defendant
agrees, on page 18 of the current instructions that the burden of proof is related to “preventing”
as opposed to impeding. Other courts have criticized use of the word “impede” in criminal jury
instructions on grounds that the definition of the word is expansive, meaning “to interfere with or
get in the way of the progress of,” “hold up,” or “detract from”: “By definition, anyone who
innocently persuades another to withhold information from the Government ‘get[s] in the way of
the progress of’ the Government.” Arthur Andersen LLP v. United States, 544 U.S. 696, 707
(2005).
No longer was any type of “dishonest[y]” necessary to a finding of guilt, and it
was enough for petitioner to have simply “impede[d]” the Government's
factfinding ability. As the Government conceded at oral argument, “‘[i]mpede’”
has broader connotations than “‘subvert’” or even “‘[u]ndermine,’” and many of
these connotations do not incorporate any “corrupt[ness]” at all.
Id. at 706-07. On the other hand, the actual relevant statutory term here – the word “prevent” –
specifically narrows the subject aim of the alleged conspiracy to conduct that purposefully aims
to render the officer’s ability to carry out his duties entirely “impractical or impossible.” Fowler
v. United States, 563 U.S. 668 (2011). It suggests something active as opposed to passive. To
avoid jury confusion and bring the entirety of the jury instructions into a consistent and accurate
form, Mr. Bundy requests that any reference to “impeding” or “impede” should be deleted and
where necessary substituted with the word “prevent” or similar language. In the current draft,
this affects, inter alia, pages 14, 16, 18, 19, 21, 22.
2. The instruction at page 16, instructing on “specific intent” should be modified to make
clear that the consequence, even if foreseeable, of Defendants’ conduct, is not the proper focus of
the law. The government’s case-in-chief has focused primarily on whether government
Page 2 of 3 | Defendant Ammon Bundy’s Supplemental Brief on Jury Instructions.

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employees were inconvenienced, affected, or otherwise negatively impacted (rather than
“prevent[ed” from discharging their duties as set forth above) and – further blurring the
necessary standard of proof – the larger body of government evidence has dealt with the
consequences of the occupation.1 To avoid confusion and misleading the jury on this issue,
Defendant proposes that the existing instruction be supplemented with the clarifying instruction:
In order for a conspiracy under 18 U.S.C. § 372 to exist, the government must
prove beyond a reasonable doubt that the specific aim of the alleged conspiracy
was to prevent, by force, intimidation, or threat, a federal officer from discharging
his or her duties. Mere collateral effects of jointly agreed- to activity, even if
generally foreseeable, are not to be treated as an object of the conspiracy per se.
The government’s evidence must be sufficient to prove beyond a reasonable
doubt that preventing a federal officer from discharging his or her duties, by
force, intimidation, or threat, was one of the conspiracy’s objects and not merely a
foreseeable consequence or collateral effect.
In support of this instruction, see United States v. Gricco, 277 F. 3d 339, 348 (3d Cir. 2002),
overruled on other grounds as stated in United States v. Cesare, 581 F.3d 206, 208 n. 3 (3d
Cir.2009), and United States v. Goldberg, 105 F.3d 770, 774 (1st Cir. 1997).
3. Finally, based on Defendant’s prior briefing, the court should supplement the instruction
on page 19 to clarify that one “legitimate action” could be the staking of a claim for adverse
possession.
DATED: September 21, 2016
/s/ Marcus R. Mumford
Marcus R. Mumford
J. Morgan Philpot
Attorneys for Ammon Bundy

1

This includes the government’s own evidenece of the preemptory actions taken by Sheriff
Ward, and the federal agences, in response to their own internal law enforcement reports and
recommendations based on vague allusions to Bunkerville and the “people involved” – as
opposed to anything those people did in Harney County, as the governemnt alleges in Count 1.
Page 3 of 3 | Defendant Ammon Bundy’s Supplemental Brief on Jury Instructions.