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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,

Case No. 3:16-cr-00051-BR

Plaintiff,

MOTION TO DISMISS JUROR FOR BIAS


OR, IN THE ALTERNATIVE, FOR
MISTRIAL

v.
AMMON BUNDY, et al,

District Judge Anna J. Brown

Defendants.

Yesterday, the Court received from the jury a note asking: CAN A JUROR, A
FORMER EMPLOYEE OF THE BUREAU OF LAND MANAGEMENT, WHO OPENS
THEIR REMARKS IN DELIBERATIONS BY STATING, I AM VERY BIASED BE
CONSIDERED AN IMPARTIAL JUDGE IN THIS CASE? After conferring with the parties,
the Court inquired of the foreperson (Juror #1), who identified Juror #4 as the notes author,
attributing the statement to Juror #11. The Court conducted a limited inquiry of Juror #11 but
refused to ask whether he made an admission of bias as Juror #4 alleged. Based on its limited
inquiry, the Court found no basis to dismiss Juror #11 and declined Defendants request for any
further investigation. The Court, however, invited further briefing on the matter.
Based on the authority that follows, Defendant Ammon Bundy moves the Court (1) to
dismiss Juror #11 from any further deliberations, (2) to replace Juror #11 with one of the
remaining alternate jurors with an instruction to the jury to begin its deliberation anew, Fed. R.
Crim. P. 24(c)(3), or (3) in the alternative, to declare a mistrial.
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I. The Court Has A Duty To Conduct A Thorough Investigation Of Alleged Juror Bias.
The situation presented here is similar to the difficult position faced by the trial court in
Dyer v. Calderon, 151 F.3d 970, 979 (9th Cir. 1998). In that case, the Ninth Circuit held that
because of how [t]he bias or prejudice of even a single juror would violate [a defendants] right
to a fair trial, any court confronted with a colorable claim of juror bias must undertake an
investigation of the relevant facts and circumstances, including whether the jurors answers in
voir dire were dishonest and, if so, whether this undermined the impartiality of [the defendants]
jury. Id. at 973-74 (emphasis added). The trial court has an obligation to develop the relevant
facts on the record, not merely presume them, being especially careful to pursue the matter
with the requisite verve, so as to avoid a situation where a judges lack of verve casts
doubt on his findings. Id. at 976 (quoting United States v. Gaston-Brito, 64 F.3d 11, 13 (1st Cir.
1995)). As applied to the facts of this case, it is simply insufficient for the Court to stop short of a
reasonable investigation of all the relevant facts and circumstances of the colorable claim of
bias in favor of its limited questioning of Juror #11.
The Ninth Circuit recognized that, while [n]o judge would be eager to discover bias in
these circumstances, the trial judge must avoid complacency, including an ostrich-like desire
to avoid learning the details of a jurors bias and evidence that was, almost literally, right
under his nose, and should avoid findings that are either inexplicable given what he knew or
positively irrational given what he could easily have learned. Id. at 979. Instead, where a juror
is suspected of prejudice, the trial judge must assume the primary obligation to fashion a
responsible procedure for ascertaining whether misconduct actually occurred and if so, whether
it was prejudicial. Id. at 978-79 (quoting United States v. Boylan, 898 F.2d 230, 258 (1st Cir.

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1990)); see also United States v. Hendrix, 549 F.2d 1225, 1231 n. 2 (9th Cir. 1977) (trial court
must conduct a full investigation to ascertain whether the alleged jury misconduct actually
occurred (quoting United States v. McKinney, 429 F.2d 1019, 1026 (5th Cir. 1970)).
In the present case, Juror #11 is not merely suspected of prejudice. Instead, Juror #4, by
way of Juror #1, provided an unsolicited and detailed note that specifically attributed an
admission of impermissible bias made by Juror #11 at the start of deliberations. The alleged
admission concerns an area where Juror #11 had already admitted providing an insufficient
answer in voir dire. While the Court did engage in limited questioning of Juror #11, it did not
directly inquire into the event i.e., the admission attributed to him by Juror #4 clearly falling
short of a procedure that would allow the Court to ascertain whether misconduct actually
occurred. Dyer, 151 F.3d at 978. The Ninth Circuit has made clear that, the trial judge fulfills
h[er] duty only if [s]he erects, and employs, a suitable framework for investigating the
allegation [of bias] and gauging its effects[.] Id. The Court not only failed to ask Juror #11
directly whether he made the admission of impermissible bias, but it also declined to question
Juror #4 as unanimously requested by all seven defendants. Thus, the Court directly failed to
establish that the allegation of bias is unfounded. At a minimum, this Court should conduct an
investigation sufficient to address whether Juror #11 made the statement, and, if so, whether that
statement affected deliberations. Further, the limited questioning posed to Juror #11 was
inadequate [b]ecause [in such cases] the bias of a juror will rarely be admitted by the juror
himself, partly because the juror may have an interest in concealing his own bias. United States
v. Torres, 128 F.3d 38, 47 (2d Cir. 1997) (quotation omitted); see also United States v. Allsup,
566 F.2d 68, 71-72 (9th Cir. 1977) (Bias can be revealed by a juror's express admission of that
fact, but, more frequently, jurors are reluctant to admit actual bias, and the reality of their biased

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attitudes must be revealed by circumstantial evidence.); Oswald v. Bertrand, 374 F.3d 475, 484
(7th Cir. 2004) (Having invested time in the trial jurors are unlikely to acknowledge bias.);
Hughes v. United States, 258 F.3d 453, 459 (6th Cir. 2001).
Finally, matters involving Juror #11 are not necessarily limited to questions of bias. The
statement reported by Juror #4 provides the basis for a reasonable inference that Juror #11
admitted his bias in connection with an explanation of his employment history with the BLM.
This very directly and legitimately raises a question as to whether the jury is being exposed to
extraneous facts not in evidence, provided as part of an explanation by Juror #11 as to what
created his self-confessed bias. See, e.g., United States v. Swinton, 75 F.3d 374, 381 (8th Cir.
1996) (remanding for a hearing into possible juror misconduct that might have expose[d] the
jury to factual matters not in evidence). In Swinton, the Eighth Circuit explained that [t]he
question of when a juror is resorting to knowledge obtained outside the record presents some
difficulties including a violation of the right to confrontation such that where juror
misconduct exposes the jury to factual matters not in evidence, we presume prejudice and require
the government to prove beyond a reasonable doubt that the inappropriate activity did not harm
the defendant. Id. at 381-82; see also United States v. Tucker, 137 F.3d 1016, 102627 (8th Cir.
1998). The evidentiary hearing requirement in Swinton is actually the Eighth Circuit adopting the
Ninth Circuits standard for reversal when the possibility of extrinsic material could have
been considered by the jury. United States v. Bagnariol, 665 F.2d 877, 885 (9th Cir. 1981).
Here, given the centrality of BLM employee duties and the controversy and conflict
surrounding the BLM as presented in both the governments case-in-chief, and in the defense, it
is unreasonable to overlook the report of Juror #11 having made statements to other jurors
apparently based upon his personalized knowledge and experience as a prior BLM employee.

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Ii. Dismissal Of Juror #11 Is Required Due To Actual Or Implied Bias.


Actual bias is typically found when a prospective juror states that he can not be
impartial. Fields v. Brown, 503 F.3d 755, 767 (9th Cir. 2007). The information provided by
Juror #4 raises a question of actual bias, and, while Juror #11 did not directly admit such bias,
even upon general questioning, his answers remain less than definitive. This is precisely the
circumstance, when viewed in context, where Juror #11s initial answers on voir dire were
equivocal, and on questioning yesterday, indirect. Actual bias is typically found when [a
juror] expresses a view adverse to one partys position and responds equivocally as to whether he
could be fair and impartial despite that view. Fields, 503 F.3d at 767. In any event, under the
present circumstances, Defendants are entitled to an opportunity to prove actual bias at a full
hearing where Juror #11 is broadly questioned under oath on the issue. Smith v. Phillips, 455
U.S. 209, 215 (1982) (This Court has long held that the remedy for allegations of juror partiality
is a hearing in which the defendant has the opportunity to prove actual bias.).
In contrast to actual bias, implied bias exists when the relationship between a
prospective juror and some aspect of the litigation is such that it is highly unlikely that the
average person could remain impartial in his deliberations under the circumstances. Fields, 503
F.3d at 767. The allegations regarding Juror #11 fall within this framework, with at least
sufficient detail to justify further proceedings prior to any additional deliberations. As the Ninth
Circuit has explained, [w]e agree with the observation in Kiernan v. Van Schaik, 347 F.2d 775,
781 (3d Cir. 1965): That men will be prone to favor that side of a cause with which they identify
themselves either economically, socially, or emotionally is a fundamental fact of human
character. United States v. Allsup, 566 F.2d 68, 71 (9th Cir. 1977). Here, the governments
entire case was based on 47 witnesses, only 3 of which were not government employee, and the

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central question has to do with an alleged conspiracy of force, intimidation or threat directed at
FWS or BLM employees. Juror #11 may continue to claim he is not biased to the Court, but his
admitted background, which was originally underreported, and the admission now reported by
Juror #4 are credible reasons to suggested implied biased for the same reasons that former bank
employees in Allsup could not be expected, despite their stated belief, to remain impartial in a
bank robbery case.
The potential for substantial emotional involvement, adversely affecting
impartiality, is evident when the prospective jurors work for the bank that has
been robbed. Persons who work in banks have good reason to fear bank robbery
because violence, or the threat of violence, is a frequent concomitant of the
offense The employment relationship coupled with a reasonable apprehension
of violence by bank robbers leads us to believe that bias of those who work for the
bank robbed should be presumed.
Id. Here, while Juror #11 was not initially excused pre-trial, given the way the case developed,
and the recent issue raised by Juror #4, the same apprehension of violence that was applicable in
Allsup is applicable here to a former BLM employee sitting on a jury considering conspiracy
charges including alleged force, intimidation and threats against BLM employees. Relevant here,
the alleged statement reported by Juror #4 is not just that Juror #11 stated he was very biased
but that the bias was related to his work history with the same BLM that is the alleged target of
the Defendants actions in this case.
In either circumstance, actual or implied bias, the tepid efforts so far employed by the
Court are insufficient to resolve the concerns raised, and Juror #11 should be dismissed. The
Ninth Circuit has expressly recognized that revelations of possible juror bias can occur in three
distinct stages of trial: first, for those revelations that occur during voir dire, the remedy is a
cause challenge; second, for those that occur during trial, the remedy is a contemporaneous
proceeding during which the trial court can preserve the integrity of the jury; and third, for
revelations that occur after trial, the remedy is a post-trial hearing. Fields, 503 F.3d at 774.
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Only the last stage is directly implicated by FRE 606,1 and the current situation, where no verdict
has been returned, falls within the second, contemporaneous proceeding stage, where the court
should attempt to preserve the integrity of the jury. In this context, it is entirely appropriate and
necessary to question the allegedly biased juror at a hearing and under oath. See United States v.
Mitchell, 690 F.3d 137, 150 (3d Cir. 2012) (The juror may be questioned in a hearing during or
after trial if doubts regarding his or her impartiality emerge during the proceedings. All of these
checks in the system exist to protect the defendant's right to be judged by an impartial jury,
consistent with the Sixth Amendment.); see also Tucker, 137 F.3d at 102627 (reversing where
trial court failed to permit the defendant to question the juror under oath). And the trial court is
not bound by rigid rules, but has broad discretion. As a matter of common sense, a trial judge in
making these decisions will necessarily be directed by the content of the allegations, including
the seriousness of the alleged misconduct or bias, and the credibility of the source. United States
v. Hendrix, 549 F.2d 1225, 1227-28 (9th Cir. 1977) (citation omitted); see also Fields, 503 F.3d
at 804 n.1 (We note that this determination may depend upon testimony of the juror in
question.).
So, in the first instance, FRE 606 does not apply because of the stage of these
proceedings, but secondarily, even without inquiring into specific deliberations as to the facts
and evidence presented in this case, and without even touching on any jurors thoughts or
impressions of the evidence received in this case, the Court must take steps to resolve the issue

See Warger v. Shauers, 135 S. Ct. 521, 529 (2014), where the Supreme Court observed that
FRE 606 does not say during an inquiry into jury deliberations, or prohibit the introduction of
evidence of deliberations for use in determining whether an asserted error affected the jury's
verdict, but rather simply applies [d]uring an inquiry into the validity of the verdict that is,
during a proceeding in which the verdict may be rendered invalid. Even if jurors lie in voir dire
in a way that conceals bias, juror impartiality is adequately assured by the parties' ability to
bring to the court's attention any evidence of bias before the verdict is rendered. Id.
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of bias and possible taint by questioning on whether or not the statement was made, and whether
or not related the possibility of extrinsic material could have been considered by the jury. If
the Court is not inclined to further investigate, there is ample authority justifying the dismissal of
Juror #11 based upon current circumstances. The settled rule in this and other circuits is that the
trial judge, in h[er] sound discretion, may remove a juror and replace him with an alternate juror
whenever facts are presented which convince the trial judge that the juror's ability to perform his
duty as a juror is impaired. United States v. Smith, 550 F.2d 277, 285 (5th Cir. 1977) (quoting
United States v. Cameron, 464 F.2d 333, 335 (3rd Cir. 1972)); see also United States v. Jones,
534 F.2d 1344, 1346 (9th Cir. 1976); United States v. Domenech, 476 F.2d 1229, 1232 (2nd Cir.
1973); United States v. Ellenbogen, 365 F.2d 982, 989 (2nd Cir. 1966); United States v. Zambito,
315 F.2d 266, 269 (4th Cir. 1963).
And, however the Court might decide to proceed, under any circumstance, a court must
excuse a prospective juror if actual bias is discovered and any inconvenience to the Court or the
proceedings is heavily counterbalanced by the substantial probability that a possibly biased
juror despite their disclaimers, could not become the indifferent juror[]which the Constitution
guarantees a criminal defendant. Allsup, 566 F.2d at 71-72. A juror is considered to be
impartial only if he can lay aside his opinion and render a verdict based on the evidence
presented in court. Patton v. Yount, 467 U.S. 1025, 1037 n.12 (1984). Any [d]oubts
regarding bias must be resolved against the juror. United States v. Gonzalez, 214 F.3d 1109,
1114 (9th Cir. 2000) (citation omitted).
Iii. If The Court Declines To Dismiss Juror #11, It Should Declare A Mistrial.
If the court cannot find a way to get to the bottom of the issue, having received credible
information that the juror or jurors may be biased, then the only remedy is dismissal of the panel,

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notwithstanding the expense and inconvenience of the result. At least as far back as 1891, the
Supreme Court observed that in order to prevent the defeat of the ends of public justice when
it is made to appear to the court that, either by reason of facts existing when the jurors were
sworn, but not then disclosed or known to the court, or by reason of outside influences brought to
bear on the jury pending the trial, the jurors, or any of them, are subject to such bias or prejudice
as not to stand impartial between the government and the accused it was clearly within [the
courts] authority to order the jury to be discharged, and to put the defendant on trial by another
jury. Simmons v. United States, 142 U.S. 148, 154-55 (1891). Significantly, in Simmons, the
mistrial was further warranted by circumstances now present in this case where the allegation of
juror bias has been prominently reported in the local media.2
More is at stake here than the rights of petitioner; justice must satisfy the
appearance of justice. Offutt v. United States, 348 U.S. 11, 14 (1954). An
irregularity in the selection of those who will sit in judgment casts a very long
shadow. Cruz v. Abbate, 812 F.2d 571, 574 (9th Cir. 1987). A perjured juror is as
incompatible with our truth-seeking process as a judge who accepts bribes. Cf.
Bracy v. Gramley, 520 U.S. 899 (1997).
Dyer, 151 F.3d at 983.
In 1949, the Supreme Court prominently reaffirmed that mistrial, when a reasonable
possibility of juror bias cannot be resolved, is the required remedy. [W]here a trial judge has
discovered facts during a trial which indicated that one or more members of a jury might be
biased against the Government or the defendant it is settled that the duty of the judge in this
event is to discharge the jury and direct a retrial. Wade v. Hunter, 336 U.S. 684, 689 (1949).
This same doctrine was again reaffirmed in 1963. Discovery by the judge during a trial that a
member or members of the jury were biased pro or con that circumstance has been held to
2

See Maxine Bernstein, One Juror Questions Impartiality Of Another Juror During
Deliberations In Oregon Standoff Case, The Oregonian/OregonLive, Oct. 25, 2016, available at
http://www.oregonlive.com/oregon-standoff/2016/10/one_juror_questions_impartiali.html#incart
_river_home (reporting the juror notes and issue raised regarding Jurors 4 and 11).
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warrant discharge of the jury and direction of a new trial. Downum v. United States, 372 U.S.
734, 736 (1963). The Supreme Court has continued to repeat this same guidance. It is settled
that the duty of the judge in this event is to discharge the jury and direct a retrial. Illinois v.
Somerville, 410 U.S. 458, 470 (1973); see also Oregon v. Kennedy, 456 U.S. 667, 682 (1982).
The simple principle here is that [t]he Sixth Amendment guarantees criminal defendants
a verdict by impartial, indifferent jurors. The bias or prejudice of even a single juror would
violate [the defendants] right to a fair trial. Dyer, 151 F.3d at 973. In this case, the Court has
repeatedly noted how the jurors have credibly and repeatedly reported to the Court instances
where there may be issues, may be potential violations of the Courts instructions, and other
significant matters. On this record, the unsolicited and detailed statement alleged to have been
made by Juror #11, in a hand written note from Juror #4, is a credible and significant
development, warranting dismissal of Juror #11 or a mistrial. It simply cannot be gainsaid that a
fair system for the administration of justice must include the guarantee of an impartial jury for
the criminally accused even over one potentially biased juror. Hendrix, 549 F.2d at 1227.
The presence of a biased juror cannot be harmless; the error requires a new trial without
a showing of actual prejudice [because] the presence of a biased juror introduces a structural
defect not subject to harmless error analysis. Dyer, 151 F.3d at 995. The case law is clear that
this Court has an obligation to develop the relevant facts based on the existing evidence of the
statement alleged by Juror #4, which has not been directly investigated, and not merely presume
them, with a full hearing and the requisite verve, id. at 976, or the court must dismiss Juror #11
and replace him with an alternate juror. Smith, 550 F.2d at 285. Absent these efforts, a mistrial is
the only remaining remedy.
DATED: October 26, 2016

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/s/ Marcus R. Mumford


Marcus R. Mumford
J. Morgan Philpot
Attorneys for Ammon Bundy

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