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 DEFENDANTS PROPOSED JURY
INSTRUCTION FOR COUNT 1 (#1296)

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 submits this response in opposition to defendant
Shawna Coxs Proposed Jury Instruction and Supporting Memorandum Defining Officer of the
United States for Count 1 (ECF No. 1296), filed on behalf of all defendants.

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The United States opposes Shawna Coxs recent request (#1296) to define officers of
the United States to include only those officers appointed under Article II, Section 2 of the
United States Constitution.

Several reasons support a broader statutory interpretation.

First, as this Court recognized in its September 1, 2016, Pretrial Ruling Opinion, several
modern courts have applied 18 U.S.C. 372 to conspiracies targeting federal officers who were
not appointed under Article II: United States v. Fulbright, 105 F.3d 443, 448 (9th Cir. 1997)
(affirming a conviction for a conspiracy that targeted an Article I bankruptcy judge), overruled
on other grounds by United States v. Heredia, 483 F.3d 913, 921 (9th Cir. 2007); United States
v. Brown, 669 F.3d 10, 19-20 (1st Cir. 2012) (targeting U.S. Marshals); and United States v.
Rakes, 510 F.3d 1280, 1282-83 (10th Cir. 2007); see also United States v. Gerhard, 615 F.3d 7,
29 (1st Cir. 2010) (noting statutes application to U.S. Marshal Service employees).
Cox correctly notes that none of these opinions squarely addresses her argument
challenging the scope of the definition of any officer of the United States, as that phrase
appears in Section 372. But she erroneously relies on cases construing Article II, Section 2 to
support her extremely narrow statutory construction. The Supreme Courts decision in Buckley
v. Valeo, 424 U.S. 1, 125-26 (1976) addressed federal candidates challenge to campaign election
laws, and the Court examined the Appointments Clause when it construed the phrase officers of
the United States.
Section 372 is an act of Congress from 1861.

As a consequence, Congress could not

have relied upon the Supreme Courts 1976 definition when it enacted this legislation.
Although this provision is more than 150 years old, it has been infrequently used.

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reported cases involved Internal Revenue Service agents whose efforts to track down tax-evading
operators of illegal stills met with resistance, see, e.g., United States v. Hall, 342 F.2d 849 (4th
Cir.), cert. denied, 382 U.S. 812 (1965); United States v. Barber, 303 F. Supp. 807 (D. Del.
1969), affd, 442 F.2d 517 (3d Cir. 1971), cert. denied, 404 U.S. 846 (1971).
However, the term office has been repeatedly defined with regard to its use in both
Article I, Section 9 and Article II, Sections 2 and 3 of the Constitution. The Supreme Court in
United States v. Hartwell, 6 Wall. 385, 393 (1867), provided the following definition: An office
is a public station, or employment, conferred by the appointment of government. The term
embraces the ideas of tenure, duration, emolument, and duties.
At other times, the term has been quite narrowly confined to the constitutional context,
and a distinction has been drawn between an officer and an employee. See Burnap v.
United States, 252 U.S. 512 (1920). Although these interpretations provide a starting point for
analysis, they are not to be narrowly applied when a statutory scheme evidences the intent of
Congress that a broader meaning was intended. Steele v. United States, 267 U.S. 505, 507
(1925).

In that case, for example, the term officer was held to include deputy marshals and

deputy collectors of customs. See also 40 Op. Atty Gen. 294, 299 (1943).
Although the 372 formulation, any officer of the United States, bears a strong
resemblance to that found in the Constitution, a review of the legislative history of the section
indicates that a reading broader than that demanded by the constitutional usage must prevail.
When first enacted in 1861, the provision relating to officers had a somewhat abbreviated form
(if two or more persons . . . shall conspire together . . . by force, or intimidation, or threat, to

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prevent any person from accepting or holding any office, or trust, or place of confidence, under
the United States . . . [they] shall be guilty of a high crime . . .).

Objection to the multifaceted

conspiracy bill, of which this provision was a part, centered on its application to conspiracies to
overthrow the Government of the United States; to wit, opponents saw the measure as
circumventing the constitutional strictures on treason prosecutions.

Senator Trumbull, in

defending the bill, stressed that its purpose was to punish persons who conspire together to
commit offenses against the United States, and cited interference with a land agent, a
postmaster, and railroad route agents to show the need for the legislation, 56 Cong. Globe, 37th
Cong., 1st Sess. 277 (1861).
The provision was reenacted in a more expanded form as part of the 1871 post-Civil War
effort to enforce the Fourteenth Amendment and to end Ku Klux Klan terrorism.

Introduced as

an amendment in much its final form after criticism of an initial formulation that sought to bring
prosecution of most State crimes within Federal jurisdiction, the measure was designed to protect
Federal officers by providing for Federal prosecution whenever they were injured because of or
in the course of their duties.

Unlike the more general conspiracy provision, 18 U.S.C. 371,

that was enacted in much its present form in 1867, 372 did not even contain a requirement
that an overt act be done in furtherance of the conspiracy before the conspiratorial conduct would
become actionable.

The broad purpose of protecting the Federal presence as fully as possible

therefore supports a broad, rather than narrow, reading of the word office.
Giving effect to this intention, the term officer appearing in 18 U.S.C. 372 includes
both permanent and temporary, full- and part-time officers and employees of the United States.

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Defendants argument drawing contrasts between section 372 and 18 U.S.C. 111,
1114 fails because she does not recognize those other statutes legislative history.

Sections 111

and 1114 were both part of the Act of May 18, 1934, ch. 299, 2, 48 Stat. 780, 781.

The

legislation was prompted by a letter from the then Attorney General requesting that piecemeal
legislation be replaced with general legislation of some character that embraced all federal
officials and employees. Ladner v United States, 358 U.S. 169, 174 n.3 (1958).
version of section 111 referred, like 372, to federal officers. Id. at 174 n.4.

The original

Thus, Congress

understanding was that federal officers encompassed both federal officials and federal
employees.
Applying the statutes plain language is, therefore, entirely consistent with this Courts
pretrial ruling recognizing that officers of the United States can include both federal officials
(who may be appointed) and federal employees (who are hired by federal appointees).

This

interpretation is, in turn, consistent with the legislative history that shows Congress sought to
protect federal presence as fully as possible.
Dated this 23rd day of September 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 Defendants Proposed Jury Instruction for

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