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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., Defendants.
 
3:16-CR-00051-BR GOVERNMENT’S RESPONSE TO DEFENDANT AMMON BUNDY’S SUPPLEMENTAL BRIEF ON JURY INSTRUCTIONS (#1321)
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 submits this response in opposition to Defendant Ammon Bundy’s Supplemental Brief on Jury Instructions (ECF No. 1321), filed on behalf of all defendants.
Case 3:16-cr-00051-BR Document 1337 Filed 09/23/16 Page 1 of 4
 
 
Government’s Response to Defendant’s Defendant Ammon Bundy’s Supplemental Brief on Jury Instructions (#1321) Page 2
 
1.
 
Defendant seeks to remove any reference to the term “impede” in the Court’s instructions. The basis for defendant’s argument is that since impede does not appear as an element of the offense, its insertion into the instructions is somehow misleading. (Def.’s Mem. 2). There is no legal authority for the Court to remove the term impede and it accurately describes the charged offense. The offense is properly captioned “Conspiracy to Impede Officers of the United States,” in violation of 18 U.S.C. § 372. Any reference the term impede in the Court’s instructions accurately describes the charged offense. The government still must  prove beyond a reasonable doubt that defendants did conspire to “prevent” officers from discharging their official duties through threats, force, or intimidation—the use of the word “impede” in the instructions does not otherwise alter that burden. 2.
 
There is also no legal authority for defendant’s request that the jury instruction include a requirement that the government prove that the conspiracy’s “specific aim” was to impede or prevent federal officers from performing their lawful duties. The cases he cites do not stand for that proposition, and in fact, the
Gricco
case he cites (which involves a 371 conspiracy), used the same formulation that this Court has proposed (i.e., that the conspiracy’s goal was “an agreed” objective). To accept defendant’s formulation would mean that if the jury found that defendants had other objectives—i.e. to generate publicity for their cause, to adversely possess federal land, etc.—that it could acquit despite the fact that defendants also sought to impede federal officers from performing their lawful duties. That proposition is not the law. Instead, courts have repeatedly recognized that conspiracy convictions are sustainable upon proof that the conspiracy
Case 3:16-cr-00051-BR Document 1337 Filed 09/23/16 Page 2 of 4
 
 
Government’s Response to Defendant’s Defendant Ammon Bundy’s Supplemental Brief on Jury Instructions (#1321) Page 3
 
had multiple objectives, even when some of those objectives were not illegal.
See, e.g.
,
 United States v. Gallishaw
, 428 F.2d 760, 763 (2d Cir. 1970);
United States v. Wedstedt 
, 589 F.2d 339, 342 (8th Cir. 1978);
United States v. Papadakis
, 510 F.2d 287, 297 (2d Cir. 1975). So long as the jury finds that “an object” of the defendants’ agreement was to impede or prevent federal officers from performing their duties—as this Court held during the pretrial conference—the evidence will sustain the conviction. Defendant’s other proposed addition on this subject—that the government must prove that the conspiracy’s unlawful objective “was one of the conspiracy’s objects and not merely a foreseeable consequence or collateral effect,” is confusing and argumentative. The Court’s  proposed instruction accurately states what the government must prove, and it should not be further embellished. Moreover, the clause misstates conspiracy law: co-conspirators
are
 liable for offenses that “could reasonably have been foreseen as a necessary or natural consequence of the unlawful agreement.”
United States v. Thomas
, 887 F.2d 1341, 1345 (9th Cir. 1989). 3.
 
Defendant seeks to supplement the existing instructions to instruct the jury that a “legitimate action” as contemplated by the Court’s instructions should include “staking a claim for possession.” (Def.’s Mem. 3). The Court has repeatedly limited defendant’s use of adverse possession to defendants’ state of mind, if defendants elect to testify. (
See
 ECF No. / / / / / / / / / / / /
Case 3:16-cr-00051-BR Document 1337 Filed 09/23/16 Page 3 of 4

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